Current through September 24, 2024
(1) Upon receiving
a Complaint arising under Title VI or Title IX, TOCR shall:
(a) Assign the Complaint a complaint number
and enter such into a log or electronic filing system that is maintained in
accordance with the Family Educational Rights and Privacy Act (FERPA),
20 U.S.C. §
1232g as well as the Tennessee Open Records
Act and any other applicable state laws;
(b) Contact the Complainant to obtain any
additional information or clarification, as needed;
(c) Determine if TOCR has jurisdiction to
investigate; and
(d) Send an
acknowledgement letter to the Complainant stating whether TOCR will pursue an
investigation.
(2) The
following timeliness requirements apply to TOCR's investigation of a Complaint
arising under Title IV or Title IX:
(a) TOCR
may investigate allegations that have been filed within one hundred eighty
(180) days of the date on which the discrimination or harassment is alleged to
have occurred.
(b) If the Complaint
alleges discrimination or harassment of an ongoing or continuous nature, TOCR
shall include older events in its investigation as long as the most recent
event of the ongoing discrimination or harassment occurred within one hundred
eighty (180) days of submitting the Complaint.
(c) TOCR may grant waivers of timeliness if:
1. The Complainant could not reasonably be
expected to have known the act was discriminatory or harassment within the one
hundred eighty (180) calendar day period and the Complaint was filed within
sixty (60) calendar days after the Complainant could have become aware of the
alleged discrimination or harassment. Lack of previous awareness of TOCR's
complaint process or the civil rights laws and regulations enforced by TOCR
shall not be a basis for a waiver;
2. The Complainant was unable to file a
Complaint because of incapacitating illness or other incapacitating
circumstances during the one hundred eighty (180) calendar day period that
rendered the Complainant physically or mentally incapable of filing a Complaint
or obtaining assistance so that a Complaint could be filed on their behalf, the
Complainant provides to TOCR documentation demonstrating such lack of capacity,
and the Complaint allegation was filed within sixty (60) calendar days after
the incapacitation ended;
3. The
Complainant filed a complaint alleging the same or similar allegation based on
the same operative facts within the one hundred eighty (180) calendar day
period in federal or state court, and filed a Complaint with TOCR within sixty
(60) calendar days after there had been no decision on the merits or settlement
of the complaint allegations. Dismissal with prejudice shall be considered a
decision on the merits;
4. The
Complainant filed a complaint alleging the same or similar allegation based on
the same operative facts within the one hundred eighty (180) calendar day
period with another federal, state or local agency, and filed a Complaint with
TOCR within sixty (60) calendar days after the other agency completed its
investigation; or
5. The
Complainant filed, within the one hundred eighty (180) calendar day period, an
internal grievance with their school or LEA or Charter School alleging the same
discriminatory or harassing conduct that is the subject of the TOCR Complaint,
and the Complaint is filed no later than sixty (60) calendar days after the
internal grievance is concluded.
(3) If TOCR opens an investigation, it shall
send a copy of the Complaint and a letter to the LEA and/or Charter School
requesting a response.
(a) The LEA or Charter
School's response shall be provided by the deadline set by TOCR and shall
include the information requested by TOCR and any relevant documentation and
witness information the LEA or Charter School believes will aid TOCR in
properly investigating and resolving the allegations.
(4) The LEA or Charter School shall make
available to TOCR all Records, information, documents, personnel, students, and
evidence needed to resolve the investigation.
(5) TOCR shall maintain the confidentiality
of confidential student information in accordance with FERPA, as well as any
other records that are confidential under the Tennessee Public Records Act or
other state laws;
(6) Failure of
the LEA or Charter School to provide necessary documentation, grant necessary
interviews, or respond to specified questions, may result in a finding of
noncompliance against the LEA or Charter School.
(7) An LEA or Charter School may ask to
resolve the Complaint with a resolution agreement before TOCR completes its
investigation.
(8) In accordance
with Department procedures, TOCR and the LEA or Charter School may execute a
resolution agreement in order to execute a mutually agreeable early resolution
prior to the conclusion of the full investigation.
(9) At the conclusion of an investigation,
TOCR shall determine that there is either sufficient or insufficient evidence
to support a conclusion of noncompliance. In its investigative summary and
findings, TOCR shall include:
(a) A statement
of the issues raised by the Complainant;
(b) A statement of TOCR's jurisdiction over
the Complaint;
(c) TOCR's
determination of sufficient or insufficient evidence to conclude noncompliance;
and
(d) A clear explanation of the
pertinent legal standard and factual analysis, referencing the evidence relied
upon in making the determination.
(10) The Complainant or LEA or Charter School
may file a written request for reconsideration to the Department of Education's
Office of General Counsel ("OGC").
(a) The
request for reconsideration shall be as specific as possible and highlight
factual or legal concerns that could change the disposition of the case.
General dissatisfaction with the investigative summary and findings shall not
be a sufficient basis for a request for reconsideration.
(b) In its review, the OGC shall examine the
documentation obtained throughout TOCR's investigation. If deemed prudent by
the OGC, the OGC may, in limited circumstances, request and include in the
review additional responses or submissions from the Complainant and/or the LEA
or Charter School. It may also be necessary to re-interview certain witnesses
if Records do not reflect clear responses to the alleged violations of law. The
OGC shall not consider issues or concerns that were not raised during the
initial investigation.
(11) In addition, the Complainant or LEA or
Charter School may directly file for review of the Department's initial
decision or reconsideration decision with the U.S. Department of Education
Office for Civil Rights.
(12) If
TOCR determines that the evidence supports a conclusion that the LEA or Charter
School failed to comply with applicable regulations, TOCR shall negotiate a
resolution agreement with the LEA or Charter School after issuing its
investigative summary and findings.
(13) Any resolution agreement entered into
between TOCR and an LEA or Charter School shall include a corrective action
plan which provides:
(a) The purpose of the
plan;
(b) Specific acts or steps
the LEA or Charter School will take to resolve compliance issues, if
applicable;
(c) Dates for
implementing each act or step and anticipated completion; and
(d) Dates for submission of reports and
documentation verifying implementation.
(14) TOCR shall provide a copy of the signed
resolution agreement entered into between TOCR and an LEA or Charter School to
the LEA or Charter School. TOCR shall monitor resolution agreements to ensure
LEA or Charter School compliance with the terms of each agreement.
(a) TOCR may require the LEA or Charter
School to submit written reports and documentation that provides evidence of
the LEA or Charter School's continued compliance with the resolution
agreement.
(b) TOCR shall provide
written notice to the LEA or Charter School of any deficiencies in
implementation and shall request immediate and appropriate action to address
those deficiencies. When necessary, TOCR shall require additions to the
resolution agreement to address the failure of the LEA or Charter School to
fully implement commitments in the original agreement.
(15) TOCR may permit modification or
termination of the resolution agreement or corrective action plan if it learns
that circumstances have arisen that either fully resolve or render moot some or
all of the compliance concerns that were addressed by the resolution
agreement.
(16) TOCR may modify the
resolution agreement or corrective action plan in response to changes in
controlling case law, statutes, and/or regulations.
(17) Modification or termination of any
resolution agreement provision may be granted on a case-by-case basis. The
Complainant shall be notified, in writing, of significant modifications or
termination of the resolution agreement.
(18) TOCR shall conclude the monitoring of a
case when it determines that the LEA or Charter School has fully implemented
the terms of the resolution agreement. The LEA or Charter School and
Complainant shall be promptly notified, in writing, of the conclusion of
monitoring.
Authority: T.C.A. §§
49-1-102, 49-1-302, and
49-3-201;
42 U.S.C. §§
2000d, et seq.;
20 U.S.C. §§
1681, et seq.; 34 C.F.R. Part 100; and 34
C.F.R. Part 106.
