Excerpt from a grievance procedure review:
The only College process that reflects that an investigation will be conducted is the one required as a part of the Disabled Student Services grievance procedure. The described investigative process is insufficient for a number of reasons including:
- The unrealistically short designated timeframe, i.e., the 504/ADA coordinator only has ten days from start to finish to dispose of the case;
- Complainants are not ensured of impartial processing and consideration of their concerns. (The procedures provided that the only cases where investigations would be conducted would be those where attempts to broker a mediated settlement are unsuccessful);
- There is no provision stating that the parties will have the opportunity to present witnesses and evidence; and
- Timeframes are not provided for all major stages of the process.
College administrators do not have an option of not investigating allegations of disability-based discrimination and harassment. OCR has ruled that if a complainant provides sufficient information in the complaint to enable the institution to respond or proceed, the institution must act to seek information from the complainant and/or the alleged offender or to otherwise respond to the complainant’s allegations. See Tidewater Community College, No. 11-15-2027 (May 26, 2015) and State University of New York, Buffalo State College, No. 02-15-2007 (April 17, 2015). Postsecondary institutions have “an independent obligation to fully investigate allegations of discrimination/harassment and take prompt and effective action that is reasonably calculated to stop the discrimination/harassment, prevent its recurrence, and, as appropriate, remedy its effects.” San Juan Bautista School of Medicine, No. 02-15-2367 (December 14, 2015). Grievance/complaint resolution procedures must provide:
- A description of the impartial investigative process that will be used;
- Timeframes for the investigative process (all major stages: timeline for filing complaints/grievances, when a full investigation will be conducted, when a hearing will occur, if applicable, when parties will receive a response regarding the outcome, when the parties may file an appeal, if applicable);
- Provisions for maintaining on-going contact with and providing updates to the complainant throughout the investigation;
- Details of how substantiated violations will be handled;
- An opportunity for complainants and the accused to identify and present witnesses and relevant evidence;
- Notice of available interim measures that may be taken, if necessary, to protect the complainant/student in the educational setting;
- Provision for written notice of the outcome to the parties;
- Assurances that the institution will take steps to prevent further discrimination and/or harassment and to correct its effects if appropriate;
- Notice that retaliation against individuals who file disability discrimination/harassment complaints or participate in the grievance process is prohibited; and
- Assurances that the investigator will maintain the confidentiality of the complaint and information pertaining to it during the investigation, to the extent possible.
The College is also obligated to ensure that the individuals playing a role in receiving, investigating and otherwise processing complaints a) be trained in complaint investigation, b) are knowledgeable about the College’s grievance/compliant procedures, and c) are readily available to complainants. Further, those individuals should not have actual or perceived conflicts of interest in the process and there should be provisions for the assignment of an alternate if there is an actual or perceived conflict. Additionally, the investigation should involve the 504/ADA Coordinator or someone knowledgeable about the requirements of Section 504 and the ADA and the implementing regulations.