Deluged by discrimination complaints against U.S. colleges, the Education Department is taking years to resolve cases involving alleged sexual assault at Harvard Law School and Princeton University, and lawmakers are questioning the agency’s ability to enforce its own rules.
Of 68 open investigations involving campus sexual violence at the department’s Office for Civil Rights, nine are more than two years old. Compounding the problem, the office’s staff is at an all-time low.
Democratic Senators Claire McCaskill of Missouri, Kirsten Gillibrand of New York and Richard Blumenthal of Connecticut may ask for an investigation into how the agency monitors compliance with laws that bar sex discrimination in education and require colleges to report crimes. Assault complaints filed with the OCR are already triple that of two years ago. The time taken to resolve cases, along with other issues, needs urgent review, McCaskill said.
“We’re looking for fairness and consistency here,” McCaskill said in a phone interview. “We need to look at who is deciding and at what point a decision is being made about which cases rise to the level of action by the Education Department.”
Regional branches of the OCR differ in how they investigate complaints related to sexual assault, said Colby Bruno, senior counsel at the Victim Rights Law Center in Boston. The center, which has filed complaints on behalf of sexual-assault victims, found the OCR’s Boston office particularly slow in resolving a complaint against Tufts University in Medford, Massachusetts, which took about four years.
“To us, the most important issue is timing,” Bruno said in a telephone interview. “The victim needs immediate recourse to be taken to protect their rights.”
The complaint against Harvard University’s law school began in 2010. It alleges that the law school, in Cambridge, Massachusetts, uses too high a standard of evidence to prove sexual assault and harassment, according to Wendy Murphy, a lawyer and an adjunct professor at the New England School of Law in Boston, who filed the complaint. The Education Department calls for schools to use a “preponderance of evidence” standard in adjudicating cases, meaning that an incident is more likely than not to have happened. Murphy also filed the complaint against Princeton, based in Princeton, New Jersey, in 2010.
Complaints of violations to Title IX -- the law that bars sex discrimination in education -- which involve sexual violence have soared to 56 in the government’s current fiscal year, which ends in September, from 32 last year and 17 two years ago. Not every complaint results in a formal department investigation and the agency can also initiate reviews on its own.
The office’s goal is to resolve cases in 180 days or less, and the average time to resolve a case since 2009 has been 195 days, said Catherine Lhamon, assistant secretary for the Office for Civil Rights.
Lhamon declined to comment directly on longstanding complaints. In an interview, she said she has taking steps to close inquiries faster by capping the length of resolution negotiations at 90 days. Resolutions may require schools to hire and train employees in how to handle sexual assaults.
The OCR is responsible for more than Title IX cases involving sexual assault. About half of the complaints allege schools’ failure to accommodate people with disabilities, Lhamon said, and those have also increased rapidly. While fewer than 1 percent of complaints are related to sexual violence, it accounts for about 4 percent of investigations, according to department data.
Total complaints to OCR -- including those related to race, disability and gender discrimination -- rose to 9,950 in fiscal 2013, a 22 percent increase from the previous year. The office has about 600 employees, an “all-time low,” Lhamon said.
“In the 1980s, we had about 1,150 staff and we handled about 3,000 complaints annually,” she said in a telephone interview. The Education Department also enforces the Clery Act, which requires colleges to report campus crimes including sexual assaults. McCaskill and Gillibrand have proposed combining the efforts of the OCR with the Education Department’s Clery compliance staff, which now numbers about 13. The two offices already work closely, Lhamon said.
Lhamon and James Moore, Clery compliance manager for the Education Department, are among witnesses scheduled to testify Thursday in front of the Senate Health, Education, Labor and Pensions Committee by chairman Tom Harkin, an Iowa Democrat.
McCaskill said she may request that the Government Accountability Office, Congress’s investigational arm, study how the OCR’s 12 regional offices conduct investigations, McCaskill said in a phone interview. Probes are pursued consistently across the regions, Lhamon said.
“It’s important for us to address our civil rights laws in essentially the same fashion across our regions,” Lhamon said. “The truth is that all of our offices feel pretty burdened right now.”
Blumenthal, a former federal prosecutor and state attorney general, has criticized the OCR’s penalty structure that threatens schools eligibility for federal student aid, which most schools can’t survive without.
“It’s like capital punishment,” Blumenthal said. “A more flexible penalty would encourage more active enforcement, whereas taking away all federal funding hurts innocent students.”
The power to bar schools from receiving student aid is an “extremely effective tool,” Lhamon said.
“I’m very, very pleased with the success we’ve had,” she said.
Blumenthal also suggested looking at how the department collects crime data. While useful, they don’t convey the nature of the sexual assaults, how they’re addressed, and whether they’re linked to activities such as drinking, Blumenthal said.
“What we get are broad overall numbers,” he said. “We need more specific and timely data, and we should know who’s collecting it and how reliable it is.”
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