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OCR Investigations: Put Your Best Foot Forward!
Omar Syed, UT System Office of General Counsel Gail Jensen, UTSA Office of Legal Affairs
Live from UTSA Studios
UT System Office of General Counsel’s Education Seminars https://commons.wikimedia.org/wiki/File:Revised_Sombrilla_Plaza_UTSA,_San_Antonio_IMG_1221.JPG , http://pagethink.com/media/uploads/project-gallery-images/lg_utsa_admin_03.jpg
We’ve got a long way to go and a short time to get there. -- Jerry Reed, “East Bound and Down”
UT System Office of General Counsel’s Educational Seminars
The Take-Aways
► You are under a federal investigation. ► Help OCR help you. ► Everything you do must be strategic. ► Show your institution in the best light. ► Be prepared to wait.
UT System Office of General Counsel’s Educational Seminars https://commons.wikimedia.org/wiki/File:Usdepartmentofeducationbuilding.jpg#/media/File:Usdepartmentofeducationbuilding.jpg, http://www.lindsaylanedesigns.com/2014/11/out-in-west-texas-town-of-el-paso.html ,
Who is the OCR?
► An office within the U.S. Dep’t of Education. ► Based in Washington, D.C.
► Regional enforcement office: Dallas, TX • Covers:
► Enforcement = investigators + lawyers
UT System Office of General Counsel’s Educational Seminars https://en.wikipedia.org/wiki/Economy_of_Texas, http://www.louisianapartnership.org/page-14122444, http://www.scrapbook.com/store/spc-50322.html , http://www.sircon.com/state-information-center/mississippi.html
What Does OCR Do? • Administers civil rights laws within its
jurisdiction. – race, color, nat’l origin, sex, disability, age
• Fields and adjudicates complaints. • By its mere presence, reminds us to stay
within the law.
UT System Office of General Counsel’s Educational Seminars
What is an OCR Complaint?
• An allegation that your institution has:
– Unlawfully discriminated against a student, parent, applicant (or, more rarely, an employee);
– Unlawfully retaliated against a student, parent, applicant (or, more rarely, an employee).
UT System Office of General Counsel’s Educational Seminars
The Stakes
►Title IV funds: federal, student-based financial assistance. ► Department of Justice enforcement ► Your institution’s reputation
UT System Office of General Counsel’s Educational Seminars http://www.oit.edu/college-costs/financial-aid/resources/types, http://www.sovereignman.com/trends/justice-department-rolls-out-an-early-form-of-capital-controls-in-america-16640/, http://sundial.csun.edu/2010/03/students-faculty-react-to-campus-protests/
Complaints – Behind the Scenes • Before you see the complaint, OCR has already:
√ Received the complaint.
√ Acknowledged it.
√ Decided it has subject-matter jurisdiction.
√ Decided it has personal jurisdiction.
√ Decided that the complaint was timely (or that a waiver is appropriate).
√ Decided there is reason enough to investigate.
UT System Office of General Counsel’s Educational Seminars
The Complaint
UT System Office of General Counsel’s Education Seminars http://michaelclara.com/wp-content/uploads/2013/05/OCR-RESPONSE.jpg
Possible Routes
• Early Complaint Resolution
• Investigation
UT System Office of General Counsel’s Education Seminars
Your Best Foot Forward
You don’t sell for what you’re worth unless you look good. -- Lady Bird Johnson
UT System Office of General Counsel’s Education Seminars http://blog.americanmeadows.com/2008/06/03/lady-bird-johnson-is-back-in-washington
How Do We Step Forward?
UT System Office of General Counsel’s Education Seminars
Position Statements 101
• Review the complaint.
• Conduct an initial investigation.
• If we did something wrong, fix it, now.
• If we didn’t, prepare a position statement.
UT System Office of General Counsel’s Education Seminars
Position Statements 401: Strategy and Tactics • Every one of your actions is strategic.
– Position statement
– Campus visit
– Accommodations
– Tone in writing
UT System Office of General Counsel’s Education Seminars
Position Statements 401: Your Written Document • Clear, concise, thorough.
– Who wants to read a term paper?
• Photos of campus?
• Be a chameleon. – Point-by-point or more thematic? – Emphasize facts, law, both, or neither? – Include written statements or affidavits?
UT System Office of General Counsel’s Education Seminars
Position Statements 401: Your Tone • Do you know why I pulled you over?
– “Yes, sir”: Emphasize commitment to civil rights laws.
– License and registration: Highlight specific accolades and (lawful) initiatives.
– Invite the breathalyzer: Write to inform and persuade, not combat or ridicule.
UT System Office of General Counsel’s Education Seminars
The Campus Visit: Prepare • Goal: put your people in the best
situation possible.
– Identify the key people.
– Get their stories (and their documents).
– Prepare your witnesses.
– Explain who you represent.
– Describe the scene UT System Office of General Counsel’s Education Seminars
The Campus Visit: Logistics
• Goal: make it easy (enough) on OCR.
– Directions: short and clear.
– Parking: keep it close and free.
– Conference room: pick a very nice one. (But not too nice).
UT System Office of General Counsel’s Education Seminars
The Campus Visit, cont’d • Goal: put OCR at ease with the
environment.
– Refreshments, lunch, dinner
– Restroom
– Disability access
– Campus tour (what do you want to highlight?)
UT System Office of General Counsel’s Education Seminars
The Campus Phone Call
• Goal: put OCR at ease, under the circs. – Offer Skype, other videoconferencing.
– Designate main + backup phone numbers.
– Secure a confidential conference room.
UT System Office of General Counsel’s Education Seminars
After the Campus Visit
• Debrief your witnesses.
• Circle back with the investigator.
• Wait!
UT System Office of General Counsel’s Education Seminars
Wait!
• Wait!
• And wait.
• Wait some more.
• Delay can be your friend, as long as you fix any problems.
UT System Office of General Counsel’s Education Seminars http://worldofdtcmarketing.com/sorry-pharma-the-social-media-train-has-left-the-station/social-media-and-healthcare/
Resources • U.S. Dep’t of Education, Office for Civil Rights http://www2.ed.gov/about/offices/list/ocr/index.html
• Procedures for challenging an OCR finding 34 C.F.R. § 668, et seq. • The Mootness Doctrine FindLaw definition
UT System Office of General Counsel’s Educational Seminars
Wrap Up
• Questions? • This is one presentation in a series of
seminars that OGC will be offering this year. • For more on OCR complaints, please contact
Omar Syed at 512-499-4481 or [email protected].
• We will email you a written set of all questions (and answers) we didn’t get through today.
UT System Office of General Counsel’s Educational Seminars
Thank you for your support • Tune in again next month!
• If you’d like training on another legal
topic from the UT System Office of General Counsel, please contact Assistant General Counsels Tamra English ([email protected]) or Jason King ([email protected]).
UT System Office of General Counsel’s Educational Seminars
![You can tell us by the company we keep 1972 [OCR]](https://img.pdfslide.us/doc/110x75/577cc38d1a28aba71196591e/you-can-tell-us-by-the-company-we-keep-1972-ocr.jpg)
