By , Matt Fossen
Published December 20, 2015
The Department of Education’s Office for Civil Rights has a mess on its hands: It’s conducting 148 investigations at 129 universities that may have mishandled sexual assault grievances – and that number is going up, not down.
In May 2014, only 55 universities were under investigation. A year later, the number was almost double that – 106. In just the last two weeks, eight new investigations have been opened.
The reason for the increase in cases is that OCR has doubled down on its own rules, and students have become more aware of them.
“OCR is operating with fewer staff and receiving more complaints than any time in the agency’s history,” said Denise Horn, OCR spokeswoman.
“Public awareness is certainly one factor affecting the increase in the number of OCR sexual violence cases,” Horn said. “Due to the news coverage on sexual violence issues … it’s possible that students and other members of the public became better informed about resources available to them, which, in turn, may have contributed to the substantial increase in the number of complaints involving sexual violence.”
OCR’s job is to enforce Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education activities. Investigations at first involved mostly athletics issues, like funding for male and female teams. But legal disputes in the 1980s led schools and the Education Department to rule that sexual harassment and assault constituted discriminations, and that universities must address them.
In 2001, OCR published revised guidelines for universities to handle sexual assault cases and uphold Title IX, and in 2011, OCR published its famous “Dear Colleague” letter, which reiterated Title IX policies. It required schools to employ at least one person to oversee Title IX compliance and to prove their procedures meet OCR criteria. It put institutions on notice for their own policies and tightened OCR’s interpretation of the law. The letter ignited debates about campus sexual assault and led to a surge of student claims.
According to regulations, sexual assault victims must present their case to the school. After the school’s investigation, if the accusers feel their case has not been adjudicated properly, they can take it to OCR. That is happening much more often now.
OCR’s investigations have found that universities have retaliated against students who file complaints. Among other problems, schools have delayed services and support to accusers, and they have allowed the attackers to remain in school after being found guilty.
An OCR investigation carries a lot of clout. If a school refuses to hand over legal records or cooperate, “OCR may initiate an administrative action to terminate and/or refuse to grant federal funds or refer the case to the [Department of Justice] to file a lawsuit against the school,” OCR Assistant Secretary Catherine Lhamon told Congress last year. “To revoke federal funds – the ultimate penalty – is a powerful tool.”
There is evidence that the investigations can spur change. The University of Kansas, which is currently under two federal probes, has made multiple changes to its sexual assault procedures in the last year, school spokesman Joe Monaco told FoxNews.com. He said the probes played a role in that, as well as the school’s own initiative.
Despite glimmers of progress, though, OCR has failed to resolve investigations in a timely fashion. Its goal is to finish investigations in 180 days, but from 2009 to 2013 the average investigation lasted 365 days. In 2014 that number spiked to 1,469. So far this year, the average investigation has taken 940 days. Horn said OCR has resolved 11 investigations since May of 2014.
The Education Department’s explanation is that it doesn’t have the resources to keep up with complaints. According to its data, Title IX complaints have grown steadily, from 4,987 in 2000 to 9,989 last year. At the same time, the department has lost members and funding. In 1980, OCR had 1,148 full-time staff members; last year it had 544.
OCR says investigations take time because they are complicated, but the Education Department is still asking for federal help. President Obama’s proposed 2016 budget includes a 31 percent funding increase – $131 million additional dollars – for the Education Department.
Members of Congress have also indicated support. Senators Barbara Boxer (D-CA), Tim Kaine (D-VA) and Kirsten Gilllibrand (D-NY) have all made recent statements calling for increased funding. All three cited OCR’s troubling figures.
“It’s critical that universities get timely feedback so they can take proactive steps to improve campus sexual violence prevention policies,” said Kaine. “Congress must do its part by approving additional funding to help the Office of Civil Rights manage its large caseload.”
But others are skeptical about OCR’s policies and its crackdown.
Will Creeley, vice president of legal and public advocacy for the Foundation for Individual Rights in Education, says OCR’s policies “erode the due process rights of students accused of assault.”
“The current system allows for school administrators to run the show, so it’s guaranteed to deliver faulty results for the accuser and accusee,” he told FoxNews.com. “This is a broken system.”
OCR’s policies require schools to prosecute sexual assault relying on a preponderance of evidence. “It’s our lowest possible evidentiary threshold,” Creeley said. “You can’t get to justice on the backs of the accused.”
He said universities should invest in professional legal staffs and special victims unit teams to ensure safety.
OCR insisted that its job is to be a “neutral fact-finder,” and that it seriously analyzes both sides of a case.
Creeley said his organization is monitoring the federal investigations closely. He added that only one of OCR’s investigations deals with the rights of the accused.