Partisan polarization and overheated rhetoric have become so intense that it is difficult these days to distinguish a policy mountain from a governmental molehill. Case in point: last week’s news stories about the Department of Education’s enforcement of civil rights laws.
On June 16, the left-leaning ProPublica published a leaked memo from the Department’s Office for Civil Rights (OCR) explaining that the agency would no longer automatically turn individual complaints about sexual harassment into year-long investigations of the practices of an entire university or school district. The title of ProPublica’s story? “Trump Administration Quietly Rolls Back Civil Rights Efforts Across Federal Government.”
The next day—not coincidentally—the U.S. Commission on Civil Rights announced that it would launch an extended investigation of the Trump administration’s civil rights enforcement practices. The new chair of the Commission, Catherine Lhamon, described OCR’s emerging enforcement strategy as “stunning to me and dangerous.” President Obama had appointed Lhaman to that position by shortly before he left office. Previously she was the head of OCR and the principal author of the controversial and novel enforcement policy now being revised by the Trump administration.
Is the Trump administration really undermining civil rights enforcement, or is this just another effort by the outgoing administration to score political points against its successor?
There are many reasons to be deeply skeptical of the Trump administration, especially on the issue of sexual misconduct. This is, after all, an administration led by a man who bragged about committing sexual assault. His Secretary of Education seems to know almost nothing about the civil rights laws enforced by her Department. The President has yet to nominate anyone to serve as Assistant Secretary for Civil Rights, preferring to appoint an “acting assistant secretary” in order to avoid the Senate confirmation process. This “acting” head has no government experience; her main qualification seems to have been launching a crude attack on Hillary Clinton during the campaign.
To understand what is going on here, it is useful to start with a few budget facts. The Commission on Civil Rights has described the administration’s proposed reductions in OCR’s budget as “untenable.” The President’s budget does include a small cut for OCR, from the current $108.5 million to $106.8 million. This will mean that its FY 2018 budget might be the smallest since—well, 2016. In FY 2014 OCR’s budget was just a little over $98 million. So it’s hard to see what all the fuss is about. With all the downward pressure on discretionary spending, OCR has fared pretty well.
OCR has argued that it needs more money and investigators because its caseload has grown rapidly. On the surface this would seem to be true. In 2010 the agency received about 7,000 complaints each year. By 2014 this had grown to almost 10,000 and by 2016, 16,700. But the 2014 figure includes 1,700 sex discrimination complaints filed by two individuals. The 2016 number includes a whopping 6,157 Title IX complaints filed by a single individual. Should the number of complaints filed by two or three enterprising private citizens be the standard for judging how much public money a regulatory agency receives?
The enforcement strategy question is more complicated, so some background is in order. The investigations most affected by OCR’s new policy are those involving allegations of sexual assault and other forms of sexual harassment. In 2011 and 2014 OCR issued extensive guidelines on how schools must respond to such allegations and on the practices they must institute to “to eliminate the hostile environment, prevent its recurrence, and address its effects.”
Accompanying these new rules was a novel enforcement strategy with two parts. First, instead of waiting until a case had been resolved before making the investigation public (its policy for decades), OCR now announced with great fanfare the initiation of all sexual harassment investigations. The purpose of this change was to emphasize the importance of the issue and to put intense pressure on colleges to comply with OCR’s demands.
Second, each sexual misconduct complaint filed by an individual would trigger a full-blown investigation of the entire institution. Catherine Lhamon explained to an Associated Press reporter that when the agency receives a complaint, “it’s better to look at a school’s policies, and other case files, to see if what happened to that student is an aberration.” She conceded that these reviews can take years to complete: “A review is onerous. I don’t love how much time it takes for my staff, and I don’t love how much time it takes for schools. But I do love ensuring safety for all students on campus.”
Onerous and time-consuming these investigations have indeed become. Since 2011 OCR has initiated 399 sexual assault investigations, but resolved only 62 of them. The average investigation lasts 1.7 years, the longest over six years.
Even those who applaud OCR’s aggressiveness on the issue have criticized it for letting the individual complainant fall through the cracks. A lawyer for the Boston-based Victim Rights Law Center praised OCR’s determination to “look at everything from soup to nuts,” but argued that its enforcement strategy “utterly fails to provide remedies to individual victims.” She described OCR’s response to individual complainants as “Thanks for the complaint, we’ll see you in four years while we do a compliance review.” The authors of a recent Yale Law Journal article agree: “While OCR has dramatically improved its efforts to reform structural Title IX compliance across universities . . . it has done relatively little to promote complainants’ immediate access to education.” OCR’s recent enforcement shift was aimed at least in part to address this problem.
OCR’s investigations place enormous stress on college administrators. In fact, they are designed to give schools powerful incentives to reach an agreement with OCR—or better still, pressure schools not yet the target of a complaint to follow every element of OCR’s lengthy guidance documents.
According to a Chronicle of Higher Education report, “Longtime leaders can’t recall another issue that so consumed colleges. . . . Just about every campus has a task force. Some presidents say they’ve spent half their time on the issue—and serious money, limiting their ability to add another mental-health counselor, for example, or hold down a tuition increase. Chancellors can rattle off the percentage of students and faculty member who have completed new training programs.” Student affairs administrators at some schools under investigation told a Chronicle reporter that they were “buckling under the pressure of trying to meet the government’s approval with their prevention and adjudication efforts.” Few investigations result in a finding of no violation—even if the only specific infractions involve deficient record-keeping. According to Peter Lake of Stetson University, one of the country’s leading experts on Title IX compliance, “They come into your closet and say, ‘Everything is in order, but we just went into your dresser and your socks aren’t matching.’”
About the only way to get out from under such investigations is to sign a lengthy and detailed compliance agreement that allows OCR to monitor school activities—and veto any policy changes the school might consider—for years to come.
Why did OCR deviate from its decades-long enforcement policy and routinely turn sexual harassment complaints into full-blown compliance reviews? In large part because it has strayed so far from the Supreme Court’s interpretation of Title IX, the federal law that serves as the foundation of OCR’s rules on sex discrimination. The Court has taken a much narrower reading of federal regulatory authority than has OCR. Consequently, administrators cannot rely on federal courts to enforce their commands.
The agency has never been willing to use the enforcement mechanism specified by Title IX, the termination of federal funding. That “nuclear option” is politically too risky. To put it bluntly, the lengthy, costly, and reputation-damaging federal investigation is the weapon OCR has used to bludgeon schools into complying with its legally questionable demands.
At the heart of the debate over Title IX enforcement strategies lies this fundamental question: Are the lengthy guidelines OCR has established for combating sexual harassment in education institutions legal and wise? Or has OCR gone well beyond its legal mandate to insist that schools adopt policies that threaten due process of law and freedom of speech?
Those who have harshly criticized OCR’s rules include many who would never dream of supporting Donald Trump. That includes the former director of the ACLU, the American Association of University Professors, a task force of the American College of Trial Lawyers, twenty-eight Harvard Law School professors, sixteen University of Pennsylvania law school professors, and many others.
In short, to criticize OCR’s current enforcement strategy and the Title IX policies announced by the Obama administration is not to attack civil rights. Controversial public policies should not be exempt from reexamination simply because their authors place the label “civil rights” upon them.
Given the close link between OCR’s enforcement strategy and its controversial regulations, it would be best for OCR to move now to an explicit re-examination of its 2011 and 2014 guidance on sexual harassment. The agency never followed the procedure laid out by the Administrative Procedure Act or Title IX itself when it announced these novel policies. Inverting the normal process, it announced these guidelines in unilateral “Dear Colleague Letters,” only later asking for comments. It also thumbed its nose at the Supreme Court’s reading of the statute it claimed to implement.
The Trump administration is often accused of acting impetuously, secretly, and without concern either for evidence or for the institutions of constitutional democracy. Unfortunately, over the past few months it has provided all too many examples of such behavior. By using well-established procedures to review the flawed policies of its predecessor, by showing respect for the rulings of the Supreme Court, and by speaking forthrightly about the connection between policy and enforcement, OCR could distance itself from some of the ugliest features of the Trump administration. Whether its leaders will have the inclination or the political ability to do so remains very much in doubt.
In the meantime it would be wise for everyone to tone down the rhetoric that portrays every policy initiative of the Obama administration’s OCR as an indispensable civil right. During its short tenure, the Trump administration has done many things that deserve our condemnation. OCR’s revised enforcement strategy is not one of them.
— R. Shep Melnick
R. Shep Melnick is Thomas P. O’Neill, Jr., Professor of American Politics at Boston College and author of the forthcoming book The Transformation of Title IX from Brookings Press.