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Already overwhelmed by the Covid-19 challenge, public elementary and secondary schools have yet another problem to address: sexual harassment. In February, the U.S. Department of Education announced a new enforcement initiative designed to “combat the troubling rise of sexual assault in K­–12 public schools.” During the Obama administration, the department’s Office for Civil Rights, or OCR, focused primarily on sexual assault on college campuses. Three factors led the department to shift gears and pay more attention to elementary and secondary education: new federal legislation that prohibits schools from passing along to other districts employees who have engaged in sexual misconduct with students; an investigation of Chicago schools that uncovered pervasive sexual misconduct by teachers and students; and evidence from the department’s Civil Rights Data Collection that nearly 10,000 students in elementary or secondary schools were the victim of assault, rape, or attempted rape during the 2015–16 school year.

In early May, the department released its long-awaited regulations spelling out schools’ responsibilities for addressing sexual harassment under Title IX of the Education Amendments of 1972. This was the first full administrative rulemaking process the department has ever conducted on the subject and its most substantial effort to explain the differences between the rules that apply to K–12 schools and those that apply to colleges and universities. The department’s explanation of its new regulations runs to more than 2,000 pages. Since elementary and secondary schools will soon come under greater scrutiny than ever before, school attorneys and Title IX officers will be poring over that gargantuan document to determine what school districts must do to comply with federal law.

Evolving Disputes

Title IX says nothing about sexual harassment or sexual assault; it simply prohibits educational institutions that receive federal funds from discriminating on the basis of sex. In the 1990s, however, federal courts began to hold school districts responsible for sex-based harassment serious enough to deny a student equal access to education. In 1992, the Supreme Court ruled that a school district could be sued for monetary damages for failing to prevent serious, ongoing abuse of a student by a teacher. Then, in 1998 and 1999, the high court issued two additional decisions that established the legal framework for evaluating schools’ liability for sexual misconduct: a school is liable under Title IX only if it has “actual notice” of harassment “that is so severe, persistent, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit,” and responds to such misconduct with “deliberate indifference.” All three of these cases, it bears noting, involved elementary and secondary schools.

The Supreme Court’s standard was more lenient than the standard OCR had announced a few years earlier in a guidance document. On the day before the inauguration of George W. Bush, the outgoing Clinton administration explained that it would not follow the court’s lead. The court’s standard, it insisted, applied only to suits for monetary damages, not to the rules schools must follow to qualify for federal funding. OCR doubled down on its previous position, establishing more demanding procedures for reporting, investigating, and responding to harassment complaints. For over a decade, those 2001 guidelines remained in legal limbo, neither enforced nor repudiated by the Bush administration.

In 2010, the Obama administration began a multiagency campaign to address a problem the president claimed “threatens our families” and “tears at the fabric of our communities”:  sexual violence on college campuses. The key element of that effort was a 2011 “Dear Colleague” letter authored by the head of OCR. It spelled out in detail what all schools that receive federal funds—not just colleges—must do to comply with Title IX. The new guidelines went well beyond those previously announced in specifying the procedures schools must follow in disciplinary proceedings and the remedial steps they must take both for individual victims and for “the broader student population.” The letter required schools to apply the “preponderance of the evidence” standard (sometimes described as “50 percent plus a feather”) when adjudicating complaints of misconduct rather than the “clear and convincing evidence” standard used by some colleges. The agency strongly encouraged schools to dispense with hearings altogether by instituting the so-called “single-investigator model.” This gives a single person appointed by the school’s Title IX coordinator authority not only to investigate the alleged misconduct, but also to determine guilt or innocence—with limited opportunity for appeal. The letter also established a broad definition of sexual harassment, one that swept in many forms of speech as well as conduct.

OCR then conducted hundreds of lengthy investigations of colleges and universities, most of which culminated in detailed compliance agreements. Underlying this effort was the contention that “one in five college women is sexually assaulted in college” as a consequence of the campus “rape culture.” Assistant Secretary of Education for Civil Rights Russlynn Ali explained that OCR’s “new paradigm” for sexual-harassment regulation was designed to “change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence.”

These regulatory policies were attacked by civil libertarians who claimed that OCR’s rules had eviscerated students’ due-process and free-speech rights, by many college and law-school professors who resented OCR’s intrusion into academic affairs, and by conservatives who charged that OCR had exceeded its legal authority. That the Trump administration would withdraw the Obama administration’s guidance and revise its investigation strategy was a foregone conclusion. Less clear was what would replace them. Proclaiming that “the era of rule by letters” was over, in the fall of 2017, Secretary DeVos promised to use the rulemaking procedure mandated by the Administrative Procedure Act to establish new rules rather than announce them unilaterally through “Dear Colleague” letters. It took the department over two years to complete this rulemaking process. Its initial proposal, released in November 2018, received over 124,000 comments. The department responded to most of those comments in its May 2020 announcement.

The New Title IX Regulations

The central feature of the Trump administration’s approach is a return to the framework established by the Supreme Court in 1998 and 1999. No longer would schools have broad responsibility to “change the culture,” to “end any harassment,” and to address the effects of “rape culture” on the entire student population. Now the focus was on schools’ responsibility to address particular cases of serious sexual misconduct. At the same time, the new rules go far beyond the court’s bare-bones framework to explain what constitutes harassment, what schools must do to identify and adjudicate cases of misconduct, and the remedies they must provide to victims of such misconduct.

In its 2018 proposal, the department also asked for comments on “whether there are parts of the proposed rule that will be unworkable at the elementary and secondary level, if there are additional parts of the proposed rule where the Department should direct recipients to take into account the age and developmental level of the parties. . . and whether there are other unique aspects of addressing sexual harassment at the elementary and secondary school level that the Department should consider.” Although judges and administrators had previously acknowledged important differences between K–12 students and those in postsecondary institutions, this was the first time regulators had addressed the issue directly.

The most controversial element of the proposal and the final rule was the requirement that colleges and universities hold live hearings with cross-examination in sexual harassment disciplinary proceedings. Media coverage of the issue has focused heavily on the implications of the new rules for colleges, paying little attention to the fact that this requirement does not apply to elementary and secondary schools. This was one of the two major differences between the rules that now apply to K–12 schools and those that apply to higher education. The other concerned school employees’ responsibility for reporting sexual-misconduct allegations. Here the new regulations established stricter rules for elementary and secondary schools.

These stricter rules address what has long been the most common—and most serious—criticism of the Supreme Court’s framework: If schools are responsible for addressing sexual harassment only if they have “actual knowledge” of misconduct, what is to prevent them from “sticking their head in the sand” (as one law review article put it) to avoid liability? What must students and staff do to make the school aware of possible misconduct? The new rules require colleges and universities to make it easy for those subject to harassment—and anyone else who has witnessed or heard about such harassment—to file a report with the institution’s Title IX coordinator or with any other official “who has authority to institute corrective measures.”

Once the institution has received such reports, staff from its Title IX office must meet with the “complainants” (the term used to describe the targets of the alleged misconduct), offer them various “supportive measures,” explain to them how to initiate a full investigation by filing a formal complaint, and offer them informal resolution options. The department emphasized that college students are mature enough to decide for themselves how to proceed. It claimed that research demonstrates “that respecting an alleged victim’s autonomy, giving alleged victims control over how official systems respond to an alleged victim, and offering clear options to alleged victims are critical aspects of helping an alleged victim recover from sexual harassment.” Although the Title IX coordinator retains authority to launch a full investigation without the consent of the complainant, it will usually be difficult to prove misconduct without testimony from a key witness. Postsecondary institutions can require teachers and other employees to report harassment they witness or hear about, but the regulations do not require them to do so.

K–12 schools, in contrast, must consider teachers and all other school employees “mandatory reporters.” That means that when any employee learns of possible misconduct they must report it to their school district’s Title IX coordinator, and the district must investigate the matter. This reflects a change from the department’s 2018 proposal, which had included only teachers as “mandatory reporters.” The department offered this explanation of why it extended this responsibility to all employees:

The Department is persuaded by commenters who asserted that students in elementary and secondary schools often talk about sexual harassment experiences with someone other than their teacher, and that it is unreasonable to expect young students to differentiate among employees for the purpose of which employees’ knowledge triggers the school’s response obligations and which do not. Elementary and secondary schools generally operate under the doctrine of in loco parentis. . . Further, employees at elementary and secondary schools typically are mandatory reporters of child abuse under State laws for purposes of child protective services. The Department is persuaded that employees at elementary and secondary schools stand in a unique position with respect to students and that a school district should be held accountable for responding to sexual harassment under Title IX when the school district’s employees have notice of sexual harassment or sexual harassment allegations.

Consequently, one of the most important steps schools must take to comply with Title IX is to make it clear to all employees that they must without delay report alleged misconduct to the district’s Title IX coordinator. Perhaps the most egregious failing of the Chicago school system uncovered by OCR’s investigation was to allow thousands of known incidents of serious misconduct go unreported and remain unaddressed.

Under the new Title IX rules, the grievance procedures established by K–12 “may, but need not, provide for a hearing.” Nonetheless, schools must provide to each party—and their parents—a description of the allegation and a copy of the investigative report on the incident. They must also “afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.” Some who commented on the draft proposal objected that such a procedure “exposes students to hostile proceedings, unnecessarily limits the discretion of local school officials, or obligates school districts to expend resources in an unwarranted manner.” But the department held that “written submission of questions prior to adjudication” constitutes an essential element of due process and “a procedure that benefits the truth-seeking purpose” of the grievance procedure.

The final rules also require that each party have an equal opportunity to present evidence and appeal the initial decision. The alleged perpetrator must be assumed innocent until proven guilty: the burden rests on the school to show that he or she has engaged in inappropriate conduct. The regulations warn against gender bias and sex stereotyping, whether it be of the “boys will be boys” or “girls don’t lie about sexual assault” variety.

The new rules also seek to clarify whether and when schools are responsible for misconduct that takes place outside school grounds. Title IX covers all the “educational programs or activities” offered by an institution receiving federal funds. For elementary and secondary schools this includes “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs.” Schools thus have responsibility for addressing conduct that takes place on school buses, on field trips, or at athletic events. But what about students walking home from school? Internet messages or videos sent from home computers but read at school? On these difficult matters the rules are silent. Complicating these boundary issues is the fact that some forms of harassment are covered by state criminal law and thus subject to police investigation. Consequently, public schools need to reach agreements with local police on how they will divide surveillance duties, communicate with each other, and cooperate with investigations.

As school officials well know, federal civil-rights regulations place conflicting pressures on public schools. They are expected to protect their students not just from sexual harassment, but from many other forms of bullying. At the same time, they must respect their students’ basic due-process rights—including those spelled out in the new regulations. During the Obama administration, OCR issued yet another “Dear Colleague” letter, this one warning against disciplinary procedures that have a “disparate impact” on racial minorities. That letter strongly discouraged schools from suspending or expelling students for violating school rules. Such out-of-school punishments, OCR maintained, are a key component of the “school-to-prison pipeline.” Although the Trump administration withdrew this guidance, many schools have placed stricter limits on out-of-school punishments. But if an institution allows a student found guilty of sexual misconduct to remain in school, it could expose many other students to further sexual harassment—and the school itself to liability.

Enforcement: Investigations and Lawsuits

The main reason schools should establish clear, well-publicized conduct rules and reporting procedures, and take prompt action to investigate allegations, punish transgressors, and provide remedies to victims, is to reduce risk to students. But school officials also need to be concerned about their legal liability. Frequently, they will be told that failure to follow federal regulations can lead to the revocation of federal funds, though that will seldom happen. Over the past half-century, the number of times the federal government has terminated funding for failure to comply with Title IX is exactly zero. Instead, schools need to be concerned about three other forms of sanctions: private suits for damages brought by the victims of misconduct; investigations by OCR; and investigations by state and local law enforcement.

The Supreme Court’s 1992 decision in Franklin v. Gwinnett County Public Schools held that a student subjected to serious and repeated abuse by a teacher can seek monetary damages from the school district if it can be shown that school officials knew about the abuse and did nothing to stop it. The court’s later Title IX decisions established somewhat more clearly the liability rules that apply in these cases, and the new Department of Education rules spell out in much greater detail how it will apply that framework. Consequently, schools that in good faith follow those regulations are unlikely to be assessed damages under Title IX. Conversely, failure to follow the regulations will substantially increase this risk. Since parts of the new rules are specifically designed for K–12 schools, judges will be more inclined to punish those who ignore them.

Despite all the attention devoted to sexual harassment during the Obama years, until recently, OCR devoted few resources to investigating complaints in elementary and secondary schools. Starting in 2014, OCR turned every complaint lodged against a college or university into a full-scale investigation of the entire institution. Previously, the agency had publicized investigations only at their conclusion; now, it would announce with great fanfare which schools it planned to investigate. These changes were key elements of an enforcement strategy that proved remarkably effective in convincing schools to change their policies. Since OCR could not rely on the courts to enforce the demands in its 2011 “Dear Colleague” letter and since it would never pull the trigger to terminate federal funds, it in effect made the investigative process the punishment. For colleges, these investigations—some of which lasted for years—proved costly not just financially, but in terms of their reputation. Almost all eventually agreed to OCR’s demands.

These investigations were costly for OCR, as well. With fewer than 600 staff members and about 10,000 individual complaints to investigate each year, the intense focus on sexual harassment on college campuses left OCR with few resources to investigate anything else. In 2017, the Trump administration reverted to OCR’s previous policy of turning investigations of individual complaints into institution-wide compliance reviews only when it found evidence of systemic violations. This made more enforcement resources available for the K–12 initiative announced by Secretary DeVos this February.

OCR had received complaints about sexual misconduct in Chicago Public Schools in 2015 and 2016 but began its systemwide investigation only after the Chicago Tribune published an expose on pervasive and serious misconduct by students and employees in many Chicago schools. OCR’s extensive investigation revealed that, over a four-year period, Chicago schools had received 2,800 student-on-student complaints and 280 teacher-on-student complaints. Yet, for two decades—from 1999 to 2018—the district did not even have a Title IX coordinator, the first and easiest step a district must take to comply with federal rules. OCR’s investigation culminated in a 40-page “resolution letter” and an 11-page compliance agreement with the school system. The latter included not only detailed guidelines on the structure of its Title IX office and procedures for handling of complaints, but also 13 separate reporting requirements.

The 2019 resolution letter offered disturbing details on the extent of sexual harassment in Chicago’s troubled school system. Here are just two paragraphs from that letter:

Many complaints alleged ongoing physical sexual harassment of District students, including that students were repeatedly groped, grabbed, or fondled by their peers, who were often repeat offenders with a history of sexually harassing other students. These complaints documented reports of unwelcome touching over and under clothing, on the breasts, buttocks, and groin throughout the school day and at all locations in school buildings, including in school bathrooms, on the staircase and in hallways, while lining up at the water fountain, during recess on the playground in front of their peers, in the school parking lot, on school buses while traveling for school-sponsored field trips, to extra-curricular activities, and to/from their homes to school.

OCR observed that many of the complaints described students exposing their genitals at school to and in front of peers—in the classroom, on the playground, in the school bathroom—and during field trips and extracurricular activities. Schools reported a significant number of complaints of verbal threats and harassment, with students disclosing that their classmates and peers made comments such as “I’m going to rape you in the bathroom”. . .  Some students threatened more violence if their peers reported the conduct. . .  The complaints suggested that some students were coaxed and pressured by their peers to send sexually explicit images and videos of themselves, which classmates then distributed widely in the school without the student’s consent. In other cases, students who engaged in consensual activities were filmed by their peers engaging in the conduct without their knowledge and consent, and fellow students then widely shared the images among the student’s peers who discussed, viewed, and shared the images during the school day. In many of these cases, students reported suicidal ideation or threatened self-harm.

The Tribune documented multiple cases of sexual assault and statutory rape by school employees, including teachers, security officers, and coaches. Equally disturbing was the school system’s failure to address these problems when they were called to their attention by students and their parents.

To what extent is Chicago an outlier? We will have a better handle on this question once OCR begins its investigation of other school systems. Meanwhile, public schools are on notice that the federal spotlight now shines on them. Complying with Title IX regulation has become more important than ever.

Because most elementary and secondary school students are minors, misconduct in K–12 schools is more likely to violate state criminal law than the type of misconduct common on college campuses. One implication of this is that private schools not subject to Title IX (because they receive no federal funding) must still recognize their responsibilities under state law. In recent years, some of the worst abuses have been discovered at private boarding schools. For example, an investigation of the prestigious St. Paul’s School in Concord, New Hampshire, by the New Hampshire Attorney General uncovered many instances of serious misconduct by both students and staff. It culminated in a settlement agreement establishing an “Independent Compliance Overseer” who would be “embedded on the St. Paul’s School campus and tasked with reporting at least biannually to the Attorney General’s Office regarding St. Paul’s School’s compliance with all of the terms of the Agreement.” Private schools, too, would be wise to comply with Title IX rules to avoid liability under state tort law.

Coming Full Circle

When federal administrators and judges first used Title IX to address the problem of sexual harassment, their focus was on elementary and secondary schools. Starting in 2010, the emphasis shifted to college campuses. To its credit, the Department of Education has now, for the first time, explained how Title IX applies in these much different contexts. As the department steps up its investigation of K–12 schools, the new rules on due process and mandatory reporting become particularly important.

Will these new rules reduce the incidence of sexual misconduct in public schools, or will they make it easier for schools to look the other way? Or will schools simply substitute one form of procedural compliance for another? The truth is that we don’t know much about the effectiveness of Title IX rules. As vice president, Joe Biden was one of the most vigorous proponents of the administration’s efforts to reduce sexual assault on campus. But six years after that campaign began, Biden wrote a letter to college presidents claiming that little had changed: “Twenty-two years ago, approximately one in every five women in college experienced rape or sexual assault. Today that number is the same.” The harsh truth is that we do not have a good handle on either the frequency of sexual assault on campus or the effectiveness of various policy responses.

What we do know is that young women who do not attend college are more likely to be the victims of sexual assault than those who do. As Professor Callie Marie Rennison of the University of Colorado has pointed out, “while people have been bombarded with the notion that universities and colleges are hotbeds of sexual violence,” the rate of sexual victimization of women without a high-school education is “more than 400 percent greater than those with a bachelor’s degree or more.” Or, to put it in another way, female students attending Chicago public schools are much more likely to face sexual harassment that seriously limits their access to education than those attending Yale, Berkeley, or even Michigan State. This does not mean we should do less to address sexual misconduct at the college level, but it does suggest that federal regulators are right to pay more attention to the problem in some of our largest school systems. Let’s hope that the new rules specifically designed for elementary and secondary schools will aid that effort.

R. Shep Melnick is Thomas P. O’Neill Professor of American Politics at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education (Brookings, 2018).

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The U.S. Commission on Civil Rights recently released a 600+ page report on how thirteen federal agencies are enforcing civil rights laws. Like the Commission’s many previous reports, this one offers a grand tour through the extensive American civil rights state, describing the authority, responsibilities, structure, and operation of its numerous components. These include not just well known organizations as the Equal Employment Opportunity Commission, the Civil Rights Division of the Justice Department, and the Department of Education’s Office for Civil Rights, but also more obscure units such as the Office for Contract Compliance Programs in the Department of Labor, the Office for Civil Rights and Civil Liberties in Homeland Security, the Fair Housing and Equal Opportunity Office in the Department of Housing and Urban Development, and the variously named civil rights offices in Health and Human Services, the Veterans Administration, Interior, Agriculture, Treasury, and the Environmental Protection Agency. For those who must deal with any of these federal agencies, this is a valuable (if somewhat dry) source of information.

Are Rights a Reality? Evaluating Federal Civil Rights Enforcement is not just a source book on civil rights agencies, but also a heated and polemical attack on the Trump Administration. This has often been the case when the Commission releases a report during a Republican administration. Two facts have increased the level of hostility between the Commission and the White House: Donald Trump is president (what more need I say on this?); and the chair of the Commission, Catherine Lhamon, headed the Department of Education’s civil rights office during the Obama Administration. The Trump Administration has rescinded some of Lhamon’s signature initiatives, and she asked for testimony from some of the administration’s harshest critics. Given the Trump administration’s cavalier attitude toward the expertise of experienced civil servants and Congress’s failure to engage in serious oversight of regulatory programs, we should welcome such opportunities for extensive critical review of executive action.

Nonetheless, this report—like so many previous ones issued by the Commission—suffers from a basic flaw that substantially reduces its usefulness: it adopts an understanding of “enforcement” so broad and misguided that it swallows up all the controversial elements of civil rights policy. The report makes no distinction between key policy choices—for example, how to define “sexual harassment” under Title IX or the use of “disparate impact” analysis under Title VI to reduce school districts’ use of out-of-school discipline—and the strategies agencies use to induce schools and employers to comply with them. In fact, in the entire 600 pages, there is scarcely any mention of how these agencies write the rules and guidelines they then enforce. The underlying assumption is that “enforcing civil rights” means “enforcing the interpretation of civil rights statutes favored by the previous administration and a majority of the Commissioners.” “Better enforcement” means using aggressive measures to force employers and recipients of federal funds to comply with the broadest possible reading of statutory language.

If this seems like hyperbole, consider what the report says about discrimination based on sexual orientation and gender identity (which it referred to as “SOGI”). Relying on studies issued the Center for American Progress and ProPublica, the report decries the Trump Administration’s refusal to take corrective action in most “SOGI-related complaints.” The reason for that should be clear: the administration withdrew the SOGI guidance issued a few years before by the Obama Administration. In other words, the central issue is the substance of agency rules, not enforcement levels.

The Commission’s report tacitly assumes that the Obama Administration’s rules were demanded by Titles VI and VII of the Civil Rights Act. But only two years previously the Commission—with the same membership—insisted that protecting employees from these forms of discrimination required additional legislative action. The subtitle of that 2017 report was “Time for Congress to Enact Legislation to Address Workplace Discrimination Against Gay, Lesbian, Bisexual, and Transgender Americans.” It noted that “Over the past forty years, Congress has introduced multiple iterations of legislation that would prohibit workplace discrimination against LGBT Americans, but has not passed such legislation.” Until 2014, President Obama, too, insisted that prohibiting such discrimination in schools and employment required new legislation. When it became clear that Congress would not enact the bill favored by the Obama administration, the Education Department’s Office for Civil Rights issued a “Dear Colleague Letter” claiming that Title IX’s ban on “sex” discrimination included discrimination based on sexual orientation and gender identity. We can argue about the merits and the legality of that move, but presenting this as an “enforcement” matter seriously distorts the central issue.

So completely does the report sweep everything these agencies do into the category of “enforcement,” that it says almost nothing about how they establish the thousands of pages of rules, guidelines, and technical guidance they expect everyone to follow. When I testified before the Commission in November 2019, I criticized the Education Department’s Office for Civil Rights for relying entirely on unilaterally “Dear Colleague Letters” and evading the rulemaking procedures required by the Administrative Procedure Act. This was hardly a novel complaint: a few years previously two U.S. Senators had admonished Assistant Secretary of Education for Civil Rights Catherine Lhamon for her agency’s failure to follow this act. The 2019 report briefly noted this criticism, responding only with a non-sequitur: “the United Supreme Court has issued a unanimous and dispositive ruling on the question, which determined that agencies do have authority to issue policy guidance.” Of course they do. But that is not the question. The problem is that the Education Department’s Office for Civil Rights has repeatedly used a truncated process that limits public participation and information gathering when it makes key policy choices. It then insists that those subject to regulation comply with this “guidance” or face severe consequences.

In 2014 Senator Lamar Alexander pressed then-Assistant Secretary Lhamon on the status of Office for Civil Rights guidance documents and her agency’s repeated refusal to use the notice-and-comment rulemaking procedures required by the Administrative Procedure Act. When asked whether she “expects institutions to comply with your title IX guidance documents,” she answered unequivocally: “Yes we do.” When asked why the formulation of these federal mandates does not require the use of standard rulemaking procedures, she replied, “We would if there were regulatory changes.” Why did the lengthy, detailed, and controversial rules the Office for Civil Rights had issued on sexual harassment in 2010 and 2014 did not constitute “regulatory changes”? Because, Lhamon responded, “That is actually what the law is, and its guidance about the way we enforce.” In other words, she was claiming, there were no policy choices involved here, or in the hundreds of other pages of Office for Civil Rights guidance issued under Titles IX in the preceding decades. All these detailed requirements were simply deductions from the statute’s 39-word prohibition of sex discrimination.

This is an absurd and disingenuous claim, as anyone who has read these guidance documents well knows—to say nothing of those who have faced the difficult job of writing them or complying with them. But it helps us understand the central conceit of this and many previous Commission reports. Under the view expressed by the report, the rules enforced by civil rights agencies and courts are not the result of policy choices that should be explained and debated in public or subject to revocation by subsequent administrations. Rather, they are the product of administrator’s progressively evolving understanding of what statutory and constitutional rights mean. And this evolution proceeds in only one direction: toward a more expansive understanding of nondiscrimination rights—no backsliding. Law professors call this “dynamic interpretation.” Those subject to this growing body of rules often call it administrative aggrandizement. The Commission just calls it “enforcement.”

What we most want to know about civil rights enforcement is how effective it has been in reducing various forms of discrimination. Unfortunately, the report does not tell us anything about that, and for a very good reason: we have no reliable way of measuring what we most want to know. The report correctly notes that “civil rights offices do not use a standard metric to measure efficacy.” The chapters on particular agencies describe the measures each uses to evaluate how well it is doing. Most count up how many complaints they have resolved in a timely manner. Some try to give more weight to bigger cases. Such measures help us understand how agency personnel spend their time. But they tell us almost nothing about the effect of these activities on the real world. That is not the agencies’ fault. The sad fact is that we just don’t know how to do it.

The report correctly notes that the way most civil rights agencies try to measure their effectiveness has allowed the Trump administration (like the administrations of Ronald Reagan, George H.W. Bush, and George W. Bush) to tout their effectiveness by closing cases quickly—which usually means with a finding of no violation. There is a deep irony here. By placing so much weight on enforcement rather than policymaking, the Commissioners and their allies in advocacy groups have unintentionally made enforcement statistics the chief battleground. However dubious complaint-resolution numbers may be, they provide a politically cogent Republican response to the Democrats’ insufficient-enforcement critique.

The strangest feature of the Commission’s report is that it devotes more than 600 pages to describing the policies of civil rights agencies yet ignores the controversies that have engulfed these agencies for decades. How do we define that key word, “discrimination”? Must administrators and judges find “disparate treatment,” or is a showing of “disparate impact” sufficient? How do we know when a school district has become “unitary,” and thus can be released from a desegregation order? Should school districts be allowed to assign students to particular schools on the basis of their race in order to promote racial integration? Does “discrimination on the basis of sex” include discrimination on the basis of gender identity? When does sexual misconduct by individual students become “sex discrimination” by an educational institution? What form of language instruction is sufficient to demonstrate that a school has not discriminated on the basis of “national origin”? What constitutes an “appropriate education” for students with severe disabilities? The report is silent on these matters because it assumes—contrary to everything we all know—that they have been resolved by the statutes enacted by Congress.

The Commission’s staff is to be commended for compiling so much data on civil rights agencies. But in the end the reader is left wandering among the trees, without any guidance on the contours or the significance of the forest. One cannot hope to understand or evaluate the enforcement activities of federal agencies without understanding and evaluating the substance of the rules and regulations they are enforcing. But that would open up political questions the Commission seems intent upon avoiding.

R. Shep Melnick is Thomas P. O’Neill, Jr., Professor of American Politics at Boston College.

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Educators have until January 28 to comment on the Department of Education’s proposed new rules on sexual harassment and assault, which for the first time draw a clear distinction between how colleges and high schools should handle the issue.

The proposed rules implementing Title IX of the Education Amendments of 1972 were released in November, more than a year after Secretary DeVos had withdrawn the Obama administration’s guidelines on the subject and promised to follow standard notice-and-comment rulemaking procedures to replace them. Once the comment period ends, the Department must respond to all “significant” comments and explain any changes it decides to make in the interim. The final rules will be subject to judicial review, making further litigation all but inevitable. The incoming chairman of the House Education and Labor Committee, Representative Bobby Scott, has promised to hold hearings on the proposal, which he and many other Democrats in Congress have harshly criticized. The battle over federal sexual-harassment rules is thus likely to drag on for many months, leaving educational institutions unsure exactly what is required of them.

So far, the most controversial sections of the proposal are those requiring schools to hold live hearings for college disciplinary proceedings and to allow cross-examination of all witnesses, including those who have lodged sexual-assault complaints. The Department maintains that live hearings with cross-examination are essential elements of due process. Its critics warn that these requirements will inhibit victims of sexual misconduct from coming forward.

Overlooked in most press coverage of the topic is the fact that the proposal does not impose these two requirements on elementary and secondary schools. Indeed, a key feature of the proposal is that for the first time the Department has addressed the differences between colleges and universities on the one hand and elementary and secondary schools on the other. Moreover, it has asked for comments on “whether there are parts of the proposed rule that will be unworkable at the elementary and secondary school level, if there are additional parts of the proposed rule where the Department should direct recipients to take into account the age and developmental level of the parties involved . . . [and] whether there are other unique aspects of addressing sexual harassment at the elementary and secondary school level that the Department should consider.” Since this is the first time the Department has gone through the full notice-and-comment rulemaking procedure on the sexual-harassment issue, school officials should take advantage of this opportunity to weigh in on these topics.

Differences without Distinctions

The judges and administrators who developed regulatory requirements under Title IX have occasionally noted the differences between college-age students and students in elementary, middle, and high school. Yet they have seldom explained how these differences affect the legal responsibilities of school officials. In part this is a result of the peculiar way federal guidelines have evolved. When the issue of sexual harassment on campus first emerged in the 1990s, the primary focus was on middle and high schools, with little attention to the post-secondary context. All the major court decisions, including the three major Supreme Court cases, involved students under the age of 18. Starting in 2010, the Obama administration launched an aggressive campaign to curb sexual assault on college campuses. This time, in contrast, federal regulators paid almost no attention to elementary and secondary schools. Yet all of these rules, regardless of their original focus, apply to every educational institution receiving federal funds—which means all public schools and almost all private colleges in the country. Moreover, because the Obama Department of Education relied on unilateral “Dear Colleague Letters” rather than notice-and-comment rulemaking, there was little opportunity to explore how students of different ages should be treated.

There are many reasons why age matters in this context. First, as Justice O’Connor wrote in a seminal Title IX case, “children may regularly interact in a manner that would be unacceptable in adults . . . they often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it,” but not “serious enough to have the systemic effect of denying the victim equal access to an educational program or activity.”

Second, since most students in elementary and secondary schools are minors, sexual misconduct by teachers and other staff members is usually a criminal matter. Colleges can debate whether or not to allow romantic relationships between professors and graduate students. But elementary schools cannot tolerate sexual relations between a teacher and a sixth-grader. They have a responsibility not only to take immediate disciplinary action, but to alert the police.

Third, college students have far more unstructured, unsupervised time during the day than do elementary and secondary school students. They have dorm rooms, fraternities, and on-campus drinking parties—places where serious sexual misconduct is particularly likely to occur. In contrast, for much of the day elementary- and secondary-school students are subject to parental control. It is not the school’s responsibility to monitor their activity once they leave school property or finish a school activity.

Fourth, students do not have a right to attend college, but they do have a right to a primary and secondary education. That means that colleges have greater discretion over the suspension and expulsion of students—the most common punishments for sexual assault. Paradoxically, while the Obama Department of Education was demanding that schools crack down on sexual violence, it was also pushing public schools to reduce their use of out-of-school punishments. School officials were given little guidance on how to square these competing demands.

Regulators have from time to time acknowledged these age differences, and have routinely urged schools to establish “age-appropriate” policies. For example, when a North Carolina school relied on Department guidelines to discipline a six-year-old for kissing another student on the cheek, the Department’s Office for Civil Rights explained that “a kiss on the cheek by a first grader does not constitute sexual harassment.” But it did little more to clarify where schools should draw the line.

The Shifting Focus of Regulation

The main reason federal rules on sexual harassment have been shifting and unclear is that Title IX itself says nothing on the subject. It merely prohibits sex discrimination by educational institutions receiving federal funds. Federal mandates on sexual harassment emerged slowly, first in court decisions, then in administrative guidelines. Neither the courts nor the Department of Education had much to say on the topic until the early 1990s—nearly twenty years after enactment of the statute. Adopting legal arguments developed in Title VII employment cases, federal judges eventually determined that sexual harassment constitutes sex discrimination under Title IX if such noxious behavior is aimed at members of one sex and is serious enough to limit a student’s educational opportunity. (Oddly, this left those who engage in indiscriminant harassment of both sexes off the hook.)

Judges and administrators then confronted the more complicated question of when educational institutions should be held responsible for the conduct of faculty, staff, and students. To what extent should school officials be expected to monitor and control the behavior of thousands of people, an undertaking made especially difficult by the fact that much of the activity in question takes place in private? Their answers—the plural is important since there were many disagreements—emerged in two stages, the first in the 1990s and the second in the 2010s.

During the 1990s, publicity and litigation over sexual misconduct by elementary- and secondary-school teachers and students drove the regulatory agenda. On the heels of the 1991 Anita Hill–Clarence Thomas hearings, Seventeen magazine published an article on sexual harassment in elementary and secondary schools, and it encouraged readers to report on their experiences. Over 4,000 students did so. A subsequent article in the magazine reported that 90 percent of the respondents had been subject to some form of sexual harassment, nearly 40 percent on a daily basis. In 1993 the American Association of University Women published a study entitled Hostile Hallways claiming that the vast majority of high school girls had been subject to sexual harassment of some form. Although hardly systematic studies, these findings were widely reported in the press.

In 1992, the Supreme Court held that under Title IX federal judges could order a public high school to pay monetary damages for failing to take disciplinary action against a teacher who had engaged in sexual relations with an underage student (Franklin v. Gwinnett County Public Schools). Given the Rehnquist Court’s general inclination to restrict judicial remedies, this decision was surprising. The Court was likely influenced by the fact that the alleged misconduct was not only repeated and serious, but criminal. The Court made no effort to explain what constitutes actionable misconduct or when schools will be liable for the misconduct of employees or students. Answers to those questions would await years of further litigation.

The number of Title IX cases against public schools quickly grew. Most involved allegations of harassment perpetrated by other students, not teachers—behavior that is much harder for school officials to monitor and control. Lower courts were all over the map on which liability standard to apply. Some ruled that schools were liable if they “knew or should have known” about behavior that created the hostile environment. Others held that schools would be held responsible only if they had “actual knowledge” of the behavior and failed to take corrective action. Most agreed that liability for misconduct by teachers should be stricter than for peer harassment. This uncertainty produced anxiety among public-school leaders. Publications such as Education Week added to the sense of crisis by running stories that exaggerated schools’ risk of losing expensive damage suits.

School officials pleaded for clarification of their responsibilities, and in 1997 the Department’s Office for Civil Rights announced guidelines spelling out the steps schools should take to protect themselves from costly litigation. It expected schools not just to respond quickly and effectively to particular incidences of misconduct, but to “take steps reasonably calculated to end any harassment, eliminate a hostile environment if it has been created, and prevent harassment from occurring again”—an undertaking that not only went well beyond anything the courts had previously required, but would be extraordinarily difficult (if not Sisyphean) in large institutions.

Soon thereafter, the Supreme Court granted review in two Title IX cases, one involving misconduct by a middle-school teacher (Gebser v. Largo Vista Ind. Sch. Dist., 1998), the other peer harassment aimed an elementary-school girl (Davis v. Monroe City Board. of Education, 1999). In both the Court adopted a relatively lenient liability standard: schools were liable for damages only if they had “actual knowledge” of the misconduct in question and acted with “deliberate indifference.” Moreover, to violate Title IX, harassment must be “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Justice O’Connor cautioned judges to “refrain from second-guessing the disciplinary decisions made by school administrators.”

In January 2001—on the very last day of the Clinton administration—the Office of Civil Rights announced that it would not adopt this standard: it expected schools to take a number of additional steps to address the problem. The Court’s liability standard, it explained, applied only to private suits for monetary damages. Its more demanding administrative rules would be enforced through an alternative mechanism: the termination of federal funds. But since the Department has never terminated funding under Title IX, everyone knew this was an empty threat. For a decade, the Department made little effort to enforce the Clinton administration’s midnight guidelines.

Phase two began in 2010, when the Obama administration began an aggressive effort to curb what it repeatedly described as the “epidemic” of sexual assault on college campuses. To this end it issued a detailed “Dear Colleague Letter” in 2011, added an even longer guidance document entitled “Questions and Answers on Title IX and Sexual Violence” in 2014, and launched hundreds of lengthy investigations of colleges and universities. These guidelines and investigations generated intense controversy and gobbled up agency resources. How rules developed with colleges in mind would apply to schools for younger children remained unaddressed. Investigations of complaints against elementary and secondary schools were placed on the backburner.

Although the Office of Civil Rights once again threatened to terminate federal funding to schools that failed to comply with its detailed mandates, it never pulled the trigger. Instead it developed an innovative and largely successful enforcement strategy: turn each individual complaint into an investigation of the entire college or university; make these investigations so costly (in terms of reputation as well as money) that schools will sign legally binding agreements to end them; and use these agreements to build within each school an internal compliance organization that shares the perspective of federal regulators.

As a consequence, the gap between administrative and judicial interpretations of schools’ responsibility that first appeared in 2001 had become a chasm by 2014. The Department’s November 2018 proposal, in contrast, described the Supreme Court’s Gebser and Davis interpretations of Title IX as “foundational.” The stated purpose of the proposal is “to better align the Department’s regulations with the text and purpose of Title IX and Supreme Court precedents and other case law.” That requires wholesale revision of the administrative rules announced between 2001 and 2014.

Acknowledging the Difference

As part of that restructuring, the Department of Education for the first time has proposed different rules for different types of educational institutions. This was particularly clear on two matters: who is responsible for reporting sexual misconduct; and whether disciplinary proceedings must include live hearings and cross-examination.

For colleges, the proposal held that in most circumstances an institution does not have “actual knowledge” of alleged misconduct unless a student files a formal complaint with the Title IX coordinator. The fact that a faculty member or other staff member has heard about the allegation does not constitute the “actual knowledge” the Supreme Court required for imposing liability. For elementary and secondary schools, though,

actual knowledge can also come from notice to a teacher. The Department recognizes that the Supreme Court has not held definitively that teachers are ‘appropriate officials with the authority to take corrective action’ with respect to student-on-student sexual harassment; however in the elementary and secondary school setting where school administrators and teachers are more likely to act in loco parentis, and exercise a considerable degree of control and supervision over their students, the Department believes this interpretation is reasonable.

In short, elementary- and secondary-school teachers “should be considered to have the requisite authority . . . to trigger a recipient’s obligations under Title IX.”

No provision in the proposal has been more controversial than the requirement that colleges hold live hearings and allow cross-examination in sexual assault disciplinary proceedings. But as noted above, the proposal does not impose this mandate on elementary and secondary schools: “Because most parties and many witnesses are minors in the elementary and secondary school context, sensitivities associated with age and developmental ability may outweigh the benefits of cross-examination at a live hearing.” Consequently, the proposed rule “allows—but does not require—elementary and secondary schools to hold a live hearing as part of their grievance procedures.”

The November proposal thus opened a long-delayed discussion about how Title IX should be applied in different settings. Unilaterally issued “Dear Colleague Letters” tend to shut off debate: they ask for comments only after federal mandates have been announced. Notice-and-comment rulemaking, in contrast, is designed to invite public reaction. School officials should jump at this opportunity to explain to regulators the challenges they face in applying Title IX rules to children of varying ages.

R. Shep Melnick is the author of The Transformation of Title IX: Regulating Gender Equality in Education (Brookings, 2018).

The post New Title IX Rules Require Hearings, Cross-Examinations in Colleges But Not High Schools appeared first on Education Next.

Over the past decade, federal regulation of education under Title IX has been sucked into the impetuous vortex of partisan polarization. Title IX of the Education Amendments of 1972 prohibits schools that receive federal funding from discriminating on the basis of sex. For decades, intercollegiate athletics was the main source of controversy. Support for and opposition to federal policy on that topic crossed party lines.

No longer. Starting in 2010, the Obama administration issued an unprecedented number of Title IX directives and launched hundreds of investigations. Democrats in Congress cheered these moves as a long-overdue response to bullying at K–12 schools and sexual assault on college campuses. The 2016 Republican Party platform, in contrast, charged that the original purpose of Title IX had been perverted “by bureaucrats—and by the current President of the United States—to impose a social and cultural revolution upon the American people.”

The Trump administration has already taken a number of steps to modify Title IX policies. Last February, it revoked the Obama administration’s “Dear Colleague” letter (DCL) on transgender students’ access to sex-segregated facilities such as bathrooms and locker rooms. Over the summer, the Department of Education’s Office for Civil Rights (OCR) altered its procedures for investigating sexual violence complaints. Soon thereafter Secretary of Education Betsy DeVos announced that her department would conduct a thorough reevaluation of all its sexual harassment guidance documents.

This unleashed a torrent of criticism from across the aisle. Thirty-four Democratic senators told DeVos that they were “extraordinarily disappointed and alarmed” by this apparent shift in policy. Twenty Democratic state attorneys general also wrote the secretary “to express our serious concern over reports that your office is preparing to roll back important protections for survivors of sexual assault on college campuses.” The editorial board of the New York Times saw this as “Another Sign of Retreat on Civil Rights.” An op-ed in the Times by author John Krakauer and activist Laura Dunn set the tone of the coming debate: if the Trump administration succeeds in revising Title IX guidelines, “The result may make colleges safer. For rapists.”

The Trump Challenge

Needless to say, on this issue the Trump administration has a serious credibility problem. Not only has the president repeatedly made demeaning comments about women, he has even bragged about committing sexual assault. His secretary of education has yet to demonstrate an adequate understanding of the legal obligations of her department. Rather than nominating an assistant secretary for civil rights, the White House avoided a confirmation battle by making Candice Jackson “acting assistant secretary.” Jackson has no previous government experience. She apparently came to Trump’s attention by parading in front of the media some of the women allegedly harassed by Bill Clinton and by making wild accusations about Hillary Clinton. While in office, she has made imprudent off-the-cuff remarks regarding sexual abuse allegations, for which she later apologized.

This is not exactly a group that inspires confidence.

Since OCR’s controversial guidelines were established through unilateral administrative action, at first glance it would seem that they can be rescinded in a similar fashion. In 2011, President Obama announced the strategy: “We can’t wait for an increasingly dysfunctional Congress to do its job. When they won’t act, I will.” For OCR, this “We Can’t Wait” campaign included not just Title IX guidelines but Title VI rules on school discipline, affirmative action, education for English language learners, and allocation of school resources (see “Civil Wrongs,” features, Winter, 2016). In each instance, OCR evaded standard rule-making procedures by claiming that it was merely clarifying existing policy—despite the fact that the White House described these initiatives as “ground-breaking.”

President Trump clearly has a fondness for governing through hastily written executive decrees. For a number of reasons, though, the Trump administration cannot simply rescind most previous OCR directives and walk away from the sexual harassment issue as it did transgender rights. Court decisions and agency policy stretching back to the early 1990s have established schools’ responsibility under Title IX to respond to known or systematic sexual harassment. OCR’s current guidelines are long and detailed. Schools need to know which of these requirements are still operative. Moreover, a number of schools have already signed settlement agreements with OCR, and many more have changed their policies to comply with its demands. They will be reluctant to alter their practices unless they are sure they will not be subject to further investigation or to court suits.

This means the Department of Education must revise its guidelines in a way that federal judges and educational institutions find reasonable, which will require considerable political skill from an administration notorious for its impetuousness and ham-handedness.

It is important to remember that although discussion of sexual harassment has focused on colleges, OCR’s rules also apply to K–12 schools. Scores of public schools have been investigated, and many have signed detailed resolution agreements. There is also considerable overlap between OCR’s guidance on sexual harassment and its 2010 DCL on bullying, which was aimed primarily at elementary and secondary education.

The National School Boards Association’s general counsel criticized that DCL for “creating an expectation that school officials are to respond to each and every offensive incident as if it were a civil rights violation,” thus “needlessly drain[ing] school resources and attention from the more crucial task of fostering an appropriate climate while minimizing the professional discretion of local educators to craft workable, individualized solutions.” For the past seven years, OCR has paid scant attention to these legitimate concerns. As the department reviews its guidelines, public school officials have an opportunity to explain the practical implications of these federal mandates.

Sadly, it is likely that the debate over Title IX regulation will fall into the usual political rut: Democrats will decry any change as part of Republicans’ “war on women,” and the Department of Education will cover its tail by relaxing enforcement rather than rewriting its guidance. But there are several compelling reasons for Democrats to tone down their hyperbolic attacks and for the Department of Education to undertake a thorough reexamination of federal rules.

Civil Liberties

First and most important, this is one of the rare contemporary issues that does not fit easily into the usual left/right divide. OCR’s regulations have received sustained criticism from a wide array of scholars, professional groups, and civil libertarians usually aligned with the Left.

Nowhere is this more clear than in an open letter recently released by four distinguished women professors at Harvard Law School. They urge OCR to revise its guidelines in order to ensure “fairness for all students under Title IX.” They point out that the current definition of sexual harassment is so broad that it “often involves mere speech about sexual matters.” The procedures schools have adopted under pressure from OCR “are frequently so unfair as to be truly shocking.” This sends “a dreadful message, that fairness is somehow incompatible with treating sexual misconduct seriously.”

A task force of the American College of Trial Lawyers issued a similar warning: “OCR has established investigative and disciplinary procedures that, in application, are in many cases fundamentally unfair to students accused of sexual misconduct.” A federal district court judge in Massachusetts described the process used by Brandeis University as “closer to Salem, 1692, than Boston, 2015.” Another judge charged that “due process has been completely obliterated” by the actions of the University of California, Davis.

In 2016, the American Association of University Professors issued a highly critical report on OCR’s Title IX policies, pointing out that “faculty in disciplines related to gender and sexuality” are particularly “vulnerable to the chilling effect of potential hostile environment charges and are disproportionately affected in their teaching and research due to universities’ adoption of overly broad definitions.” Nadine Strossen, former president of the ACLU, devoted her 2015 Salant Lecture at Harvard to warning of the dangers to freedom of speech posed by OCR’s policies.

Anyone who has read The Campus Rape Frenzy by KC Johnson and Stuart Taylor Jr. or Unwanted Advances by Laura Kipnis will have a hard time denying that OCR’s rules and the agreements they have forced schools to sign threaten both due process of law and free speech on campus. It is hard to believe that the federal government is incapable of striking a better balance.

Rule of Law

Second, OCR’s reading of its authority under Title IX goes far beyond the interpretation adopted by the Supreme Court in two decisions that squarely addressed the sexual harassment issue. On most Title IX matters, OCR has stayed close to the courts’ interpretation of federal law. It has a strong reason for doing so: Since termination of federal funds (the main enforcement tool created by Title IX) is administratively awkward and politically suicidal, OCR relies on “private rights of action” filed in federal court to provide its directives with enforcement teeth. When schools know they can be sued for damages and injunctive relief, they become far more willing to negotiate with OCR.

In Gebser v. Lago Vista Independent School District (1998) and Davis v. Monroe County Board of Education (1999), the Supreme Court adopted a narrow reading of schools’ responsibility for sexual harassment by employees and other students. A school will be held liable for damages only if an official who “has authority to institute corrective measures” has “actual knowledge of, and is deliberately indifferent to” the misconduct.

Moreover, schools will be held liable “only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” To be covered by Title IX, such misconduct must be “serious enough to have the systematic effect of denying the victim equal access to an educational activity or program.” “Although, in theory, a single instance of sufficiently severe one-on-one peer harassment” could have the effect of denying students equal access to educational programs, the court found it “unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment.” The court also stressed that judges “should refrain from second-guessing the disciplinary decisions made by school administrators.”

On the last day of the Clinton administration, OCR issued revised guidance that explicitly rejected this view of schools’ responsibility. For example, OCR announced that “a single or isolated incident of sexual harassment may, if sufficiently severe, create a hostile environment.” When the University of Montana incorporated the language of the Supreme Court into its official policy, OCR demanded that it be removed. Schools bear responsibility for investigating “any unwelcome conduct of a sexual nature.” Most importantly, OCR’s 2011 and 2014 guidelines contained page after page devoted to “second-guessing the disciplinary decisions made by school administrators.”

OCR justified its break with the court by claiming that its interpretation applies only to court suits for damages, not to demands made by federal administrators. Recognizing that the Supreme Court might not take kindly to being ignored in this way, OCR has done all it can to avoid judicial review, even to the extent of telling senators and judges that its guidelines are just advisory, not legally binding. That, of course, is not the message it has been sending to school officials.

Not only has OCR thumbed its nose at the Supreme Court’s interpretation of Title IX, but schools that have instituted new disciplinary procedures under pressure from OCR have been repeatedly castigated by lower-court judges for disregarding procedural fairness.

Cultural Imperialism

Third, although disciplinary procedures have received the most publicity, OCR’s sexual harassment rules go far beyond this, constituting a dangerous and unauthorized intrusion into students’ lives and beliefs.

In 2010, then Assistant Secretary of Education for Civil Rights Russlynn Ali told reporters that the Obama administration’s DCLs and enforcement practices represented a “new paradigm” for dealing with sexual harassment. No longer would the focus be on identifying and disciplining perpetrators. Now the goal was to “change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence on our college campuses across the country.” This theme was emphasized by a 2014 White House report: “Sexual assault is pervasive because our culture still allows it to persist. According to the experts, violence prevention can’t just focus on the perpetrators and the survivors. It has to involve everyone.”

Repeated references to an “epidemic” of sexual assault by OCR and advocacy groups are not just overheated rhetoric. Behind the talk of “rape culture” lies a certain worldview: violence against women is so deeply engrained in our culture that we hardly see it; existing institutions will do nothing about it until they are reconstituted; and addressing the problem requires us to change the way all of us think about sex, gender, and sexuality.

“Changing the culture” is an unusually ambitious educational undertaking. That is why no word is repeated more frequently in OCR’s policy directives than “training.” Schools must provide regular training, not just for investigators and adjudicators but also for all students, faculty, and staff, usually at least once a year. OCR requires prior approval of schools’ training programs, and offers lots of advice on what should be included. The agreement with Tufts University, for example, mandates training on “victim behavior, dynamics of power, [and] implicit bias.” Dynamics of power? Should federal administrators have a big say on what schools teach their students on this politically loaded topic?

In their important 2016 California Law Review article on “The Sex Bureaucracy,” Harvard Law professors Jacob Gersen and Jeannie Suk note that the “college sex bureaucrats” who run these federally mandated programs “are not simply training students on the rules of rape, sexual assault, and sexual harassment.” Rather,

they are instructing on, advising on, counseling on, defining, monitoring, investigating, and adjudicating questions of sexual desire. . . . Sexual violence education and prevention programming is rapidly morphing into sex instruction reminiscent of guidance provided by sex therapists like Dr. Ruth. This jibes well with the public health framework that has so strongly influenced the federal regulatory orientation to sexual violence. Since the sex bureaucracy’s role is regulating health and safety, explanations of consent easily lead to instruction about what is “healthy” or “positive” in sex and relationships.

The ambition to “change the culture”—not just on college campuses but throughout the nation—lies behind many other elements of OCR’s guidelines. For example, colleges must provide remedies to victims “regardless of where the conduct occurred,” because “students often experience the continuing effects of off-campus sexual harassment in the educational setting.” This includes harassment by non-students over whom the school has no control.

Most importantly, OCR requires schools to regulate not just the behavior of their staff and students but what the agency calls “verbal conduct”—and the rest of us call speech. Its definition of “sexual harassment” includes “unwelcome” sexual advances “whether or not they involved physical touching.” This includes “making sexual comments, jokes, or gestures”; “distributing sexually explicit drawings, pictures, or written material”; “calling students sexually charged names”; and “showing or creating e-mails or Web sites of a sexual nature.”

If that is not sweeping enough, the guidelines also prohibit “sexual-stereotyping,” which includes “persistent disparagement of a person based on a perceived lack of stereotypical masculinity or femininity.” To violate Title IX, harassment “does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.”

Under pressure from OCR and student activists, many schools have extended their definition of “sexual harassment” to prohibit even more forms of speech. Harvard prohibits “sexually suggestive innuendoes” and even “commenting about . . . an individual’s body.” Marshall University defines harassment as any expression that causes “mental harm, injury, fear, stigma, disgrace, degradation, or embarrassment,” while Colorado State University at Pueblo explains it as the “infliction of psychological and/or emotional . . . through any means.” Some schools have expelled students for messages sent on social media, including tasteless jokes aimed at no one in particular.

OCR’s regulations are hardly the only threat to freedom of speech on college campuses, but they are a significant one, and for reasons spelled out below, a source of institutional support for students and college bureaucrats eager to ban any speech they find offensive.

Bureaucratizing Our Schools

Fourth, OCR’s post-2010 enforcement strategy—which can best be described as “harass and colonize”—sought to change colleges’ structure and priorities in a way that will be especially difficult to undo.

OCR’s break with the courts presented a serious enforcement problem: how could it induce schools to comply with its requirements now that court-based enforcement was unavailable? In 2013 and 2014, the Obama-appointed head of OCR Catherine Lhamon threatened to cut off federal funding to schools. But everyone knew this was a bluff. In Title IX’s 45-year history, OCR has never terminated funding. “Going nuclear” is not only politically dangerous but exposes OCR’s guidelines to judicial review—something it is desperate to avoid.

OCR’s decision to publicize its investigations was one part of a clever two-pronged enforcement strategy. It would pressure schools to negotiate legally binding agreements by subjecting them to investigations that would be expensive in both monetary and reputational terms. These lengthy investigations were not primarily information-gathering exercises. Rather, they were designed to bludgeon schools into submission. The process, as they say, became the punishment. Colleges face stiff competition for attracting students. Who wants to be accused of tolerating an “epidemic of sexual assault”? Most of the resulting agreements go well beyond what OCR’s official guidance explicitly requires. For example, many schools have adopted the “single-investigator” model” that OCR “recommends” but does not openly demand.

In addition, OCR required schools to create large Title IX offices with close ties to OCR and student activists. These offices will remain long after OCR’s policy shifts.

Before 2014, OCR had refused to publicize an investigation until it had found a violation of the law and reached an agreement with the school in question. Over the next three years, it publicly announced every sexual assault investigation against a college from the outset in order to increase pressure on schools to settle.

Just as important, OCR turned every individual sexual-assault complaint into a full-blown compliance review of the entire institution. This was expensive and time-consuming for both the targeted institution and for OCR. Of the nearly 350 investigations OCR has initiated against colleges since 2011, only 72 had been concluded by the end of August 2017 (see Figure 1). The average length of these investigations is about two years, with some dragging on for five or six.

According to a Chronicle of Higher Education report, “Longtime leaders can’t recall another issue that so consumed colleges. . . . 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.” Peter Lake of Stetson University, a leading expert on Title IX compliance, describes the process in this way: “They come into your closet and say, ‘Everything is in order, but we just went into your dresser and your socks aren’t matching.’” He estimates that from 2011 to 2015 colleges have spent more than $100 million to comply with Title IX sexual-harassment guidelines.

This enforcement strategy generated criticism not just from the schools that remained under a cloud for months and even years, but also from students who often graduate before seeing any resolution of their complaints. As a lawyer for the Boston-based Victim Rights Law Center put it, although OCR’s determination to “look at everything from soup to nuts” was “a great thing” overall, it “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.”

In June, OCR ended this novel practice, returning discretion to regional officials to determine the scope of their investigations and emphasizing the importance of expeditious resolution of complaints. But hundreds of investigations remain ongoing, and schools not yet on the hook look around and think (in the words of one Title IX officer with whom I spoke), “there but for the grace of God go I.”

The internal Title IX compliance offices produced by this process are ambitious as well as expensive. Since 2013, Swarthmore, a college with only 1,500 students, has appointed four new Title IX deputy coordinators and a Title IX Fellow, plus a “violence prevention educator and advocate” and sexual misconduct investigator in the college police department. By 2016, Harvard had 50 full-time and part-time Title IX coordinators, and Yale had 30. The University of North Carolina now has seven full-time Title IX compliance officers. This is a good example of how expansion of government regulation increases the number and influence of academic administrators—an institutional shift of great significance for higher education.

These offices do not limit themselves to responding to accusations of assault and providing support to survivors. They, too, are dedicated to “changing the culture.” For example, Harvard’s new sexual-assault office proclaims on its web site that “Rape culture is ubiquitous.” That is why colleges need to reform the way we “talk about sex.” Moreover, sexual violence is inseparable from gender inequality: “The less equity that exists between genders in a culture (men having more power than women and trans people), the more likely rape, sexual assault, and harassment are likely to occur.” Consequently, “addressing gender inequality requires reflection, action, and vision that is rooted in an anti-oppression, social justice framework.”

The extent to which laudable efforts to provide professional help to victims of sexual assault have been combined with ideological attacks on “masculinity” in the name of “social justice” is evident in Princeton’s 2017 description of a new position for an “Interpersonal Violence Clinician and Men’s Engagement Manager.” Only a third of this person’s time will be devoted to traditional counseling. The rest will involve “men’s programming initiatives geared toward enhancing awareness and challenging gender stereotypes.” In addition to the advanced degrees and clinical experience, applicants must have “expertise in” and commitment to “social justice issues.” In other words, addressing the problem of sexual assault requires us to go beyond dealing with individual cases to challenge “belief systems” about “gender stereotypes,” to expose the “privileges of male identity formation and the relationship with violence,” and to work toward “social justice.”

More Deliberation, Less Demagoguery

OCR has built this impressive edifice on the basis of a law that simply prohibits sex discrimination in educational institutions funded by the federal government. It has evaded standard rule-making procedures designed to collect evidence and encourage public participation; ignored the Supreme Court’s interpretation of Title IX; pressured schools to adopt disciplinary proceedings that deny due process to the accused; insisted upon a definition of sexual harassment so broad that it threatens free speech on campus; and created within colleges units dedicated to reeducating students on all matters sexual and on the dictates of “social justice.” To claim that any criticism of this heavy-handed regulation is designed to make colleges “safe for rapists” is to engage in a most reckless form of demagoguery.

All too often the leader of the current administration, too, has engaged in reckless demagoguery. He has shown contempt for judges and for the rule of law. He has acted precipitously and unilaterally, with little understanding of public policy or the likely consequences of his action.

Here is an opportunity for the secretary of education and OCR to do just the opposite. By using standard notice-and-comment rule making, by bringing the agency’s policy in line with the Supreme Court’s interpretation of Title IX, by getting a better handle on the extent of sexual assault in educational institutions and effective prevention measures, and above all, by focusing regulations on improving the educational opportunities that we provide students rather than upending the sexual mores of society at large, they can demonstrate that not everyone appointed by President Trump need sink to his level.

R. Shep Melnick is the Thomas P. O’Neill Jr. Professor of American Politics at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education (Brookings Institution Press, forthcoming).

The post Rethinking Federal Regulation of Sexual Harassment appeared first on Education Next.

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.

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Shortly thereafter, the issue hit the headlines when the Trump administration moved to reverse the Obama administration’s guidelines on transgender students’ access to sex-segregated facilities. Reports swirled that DeVos had objected to the move, which had been favored by Attorney General Jeff Sessions. The administration denied the reports.

This was just the opening round of what is likely to be a long series of acrimonious debates over policy at the Department of Education’s Office of Civil Rights, on topics including sexual harassment, affirmative action, instruction of English language learners and school discipline – even on who might head the agency.

During the Obama administration, this office charged full speed ahead into the nation’s culture wars by imposing on every educational institution in the country novel and detailed mandates based on very broad interpretations of Title VI of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of race and national origin) and Title IX of the Education Amendments of 1972 (which prohibits discrimination on the basis of sex).

This campaign drew a sharp reply from the Republican Party. Its 2016 platform devoted a separate section to Title IX, saying the civil rights office’s “distortion of Title IX to micromanage the way colleges and universities deal with allegations of [sexual] abuse contravenes our country’s legal traditions and must be halted.”

With about 550 employees, the Office of Civil Rights is a small agency with a very broad responsibility. It must ensure that all educational institutions that receive federal funding — which means 14,000 public school districts and more than 7,000 institutions of higher learning — comply with Title IV, Title IX, section 504 of the Rehabilitation Act of 1974 and Title II of the Americans with Disabilities Act, and the Age Discrimination Act of 1976. Since none of these statutes defines what constitutes discrimination, the agency’s power is extensive.

This is hardly the first time that civil rights office has found itself at the center of political controversy. In the 1960s it played a crucial role in dismantling de jure school segregation in the South. In the 1970s and again in the 1990s it aggressively promoted bilingual education, encountering stiff opposition both times. For many years it has interpreted Title IX to require colleges to increase the number of female varsity athletes until their numbers reflect the proportion of female students on campus.

Yet these previous bouts of activism pale in comparison with the initiatives of the Obama civil rights office.  It issued far more “Dear Colleague” letters — the form of unilateral regulation favored by the agency — than ever before, and has been aggressive in launching well-publicized investigations of colleges and universities. Since 2010, the civil rights office has issued detailed directives on eliminating racial disparities in school discipline; the allocation of school resources among racial groups; schools’ responsibility for preventing bullying; the use of race-based assignments to achieve diversity; achieving gender equity in intercollegiate and interscholastic sports, and support for pregnant and parenting students.

The two most controversial initiatives have come under Title IX: The office’s seven-year effort to combat what it described as an “epidemic” of sexual violence on campus, and its 2016 directive on the right of transgender students to choose restrooms, locker rooms, overnight accommodations and sports teams on the basis of their subjective sense of “gender identity” rather than their biological sex.

Given the Trump administration’s frequently repeated promises to shake up Washington, it is hard to see how it could ignore this office’s web of new regulations. Because the enforcement of the transgender guidelines had already been halted by a federal court, it was the easiest target.

If Secretary DeVos and Attorney General Sessions did argue over the transgender guidelines, it shows there is no consensus within the Administration on how this reevaluation should proceed.

Some have suggested that Office of Civil Rights be taken out of the Department of Education and placed in the Department of Justice. This would not only require statutory change, but would seem to suggest that the civil rights offices of all other departments and agencies also be transferred to Justice, creating one super-office with thousands of employees.

Given the fact that Education’s civil rights office already works closely with Justice — the “Dear Colleague” letter on transgender students was issued jointly by Education and Justice — it is hard to see what would be accomplished by such a massive and disruptive reorganization.

No matter where the civil rights office is located, its twelve regional offices, which employ most of the agency’s personnel, will continue to perform their main task, which is investigating the roughly 10,000 complaints filed with the agency each year. Over half these complaints involve the treatment of children with disabilities; often these involve disagreements over the details of the individualized education plans mandated by federal law. Most of the remainder involve claims of racial discrimination, complaints about the quality of instruction provided English language learners, claims that schools have not provided female students with equal athletic opportunity, and charges that schools have not dealt adequately with sexual violence and other forms of sexual harassment.

No matter what one thinks of the agency’s recent “Dear Colleague letters,” it is hard to argue that the agency should stop investigating these complaints and seeking redress for those that have merit.

So the big questions for the yet-to-be-named assistant secretary for civil rights are these: Which “Dear Colleague”” letters should be targeted for revision? What procedures should the civil rights office use to do so? How radical should these changes be?

In one way, the Obama administration has paved the way for major revisions in its guidelines. Rather than using the standard notice-and-comment rulemaking procedures laid out by the Administrative Procedures Act (APA) and then submitting these regulations to the president for his signature (as required by Titles VI and IX), it has relied entirely on unilaterally announced “Dear Colleague” letters. Their use rests on the transparent fiction that these letters do not “add requirements to applicable law,” but merely provide “information and examples” to schools on “complying with their legal obligations.”

By ignoring standard rulemaking procedures, the civil rights office avoids subjecting its regulations to public comment and review by other government agencies. Striking a pose similar to the Queen of Hearts in Alice in Wonderland, the Office of Civil Rights welcomes public comments — but only after it has established its policies.

While this makes establishing new rules quicker and easier, it also means it is quicker and easier to rescind those rules.  The Supreme Court has held that when an agency uses APA rulemaking to establish a regulation, it can only revise those rules by going through the same lengthy, politically treacherous process. But a “Dear Colleague” letter announced unilaterally can be undone unilaterally.

Turnabout may sometimes be fair play, but in these circumstances it would produce bad policy and even worse politics. That is particularly true for the policies most in need of revision, those on sexual assault and other forms of sexual harassment. These have drawn criticism from a wide array of people and groups who generally support civil rights regulation. These rules threaten both due process of law and freedom of speech.  They might have the unintended effect of discouraging the victims of assault from going to the police, who, unlike college administrators, can initiate a process that sends criminals to prison.

The civil rights office’s policies go well beyond anything required by the Supreme Court under Title IX.  They also require colleges to create large and expensive “sex bureaucracies” charged with providing ill-defined “training” to virtually everyone on campus.

As troubling as these sexual harassment rules are, it would be hard to find a worse person to challenge them than the current president of the United States. He has bragged about committing actions that clearly constitute sexual assault.  He has shown little respect for the rule of law and no understanding of the separation of powers. He seems addicted to government by decree. Facts are what he says they are. All the rest is only “fake news.”  What a terrible education for our children!

The incoming leaders of the civil rights office will have a chance to improve its regulations, but only if they willing to be everything our President is not. Rather than act precipitously and unilaterally, they should demonstrate their commitment to the rule of law and public participation by following APA’s notice-and-comment rulemaking procedures. They should collect reliable information on such matters as the prevalence of sexual assault on campus and the effectiveness of proposed remedies. They should invite debate rather than shove disagreements under the rug, as the civil rights office has so often done in the past. They should show respect for Supreme Court interpretations of civil rights law, rather than devise clever end-runs around them.

In the short run this will provoke intense controversy. In the long run, though, it will subtly shift the culture of the civil rights office to make it more knowledgeable, more analytical, more respectful of local differences and less impressed by its own self-righteousness.

Is this too much to expect of the Trump administration? Given its disgraceful performance so far, probably so. But much depends on who leads the office and how much support that person gets from Secretary DeVos. They should keep in mind Mark Twain’s aphorism: “Always do right.  This will gratify some people and astonish the rest.” Please astonish us.

—R. Shep Melnick

R. Shep Melnick is the Thomas P. O’Neill, Jr. Professor of American Politics at Boston College.

This post originally appeared on The Hechinger Report.

The post How Civil Rights Enforcement Got Swept Into the Culture Wars, and What a New Administration Can Do About It appeared first on Education Next.

R. Shep Melnick joined the EdNext podcast to discuss this article with Education Next editor Paul E. Peterson.

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In October 2014, U.S. Secretary of Education Arne Duncan announced the Obama administration’s new “education equity initiative,” explaining that the president could not “continue to wait” for Congress to act “on behalf of vulnerable children.” The centerpiece of this initiative was a 37-page “Dear Colleague” letter (DCL) detailing what public schools must do to ensure that all children have “equal access to educational resources without regard to race, color, or national origin.” The Education Department’s Office for Civil Rights (OCR), which developed the letter, contends that Title VI of the 1964 Civil Rights Act authorized this far-reaching regulatory action. Not only is that a highly dubious assertion, but the mandate is more likely to produce political controversy and a blizzard of paperwork than to improve the education of minority children.

The letter is the latest in a series of controversial DCLs that the Office for Civil Rights has issued since 2010. Past letters have focused on sexual harassment, programs for English language learners, and school discipline (see “Civil Rights Enforcement Gone Haywire,” features, Fall 2014). In each instance, OCR has used a letter circulated to public education officials nationwide to establish regulatory policy unilaterally, providing no opportunity for public comment or interagency review. Last year’s equity DCL was signed by the assistant secretary for civil rights, Catherine E. Lhamon, who prior to joining OCR had served as lead attorney for the American Civil Liberties Union in a major California school-finance case.

Flawed Assumptions

Not since the late 1960s has OCR wielded Title VI guidelines so aggressively. The effort to end de jure segregation back then enjoyed broad public and judicial support; OCR worked hand in hand with the federal courts to desegregate southern schools.

This time around, OCR cannot expect such judicial cooperation, because the agency has strayed so far from the Supreme Court’s interpretation of the Constitution and the Civil Rights Act. Just as important, OCR’s demand that each school district provide a detailed accounting of resources available to schools with varying racial demographics is more likely to overwhelm school officials with administrative burdens than to create a groundswell of support for redistributing education funds.

The Office for Civil Rights’ equity DCL is a throwback to the 1960s in another way: at its heart lies the assumption that spending more money on minority students will reduce the racial achievement gap. OCR focuses entirely on inputs, tacitly assuming that outcomes will improve if more resources are channeled to existing schools.

There are three problems inherent in this assumption: 1) since the early 1970s, real per-capita spending on K–12 public education has nearly doubled, yet student performance in the 12th grade has barely budged, and the U.S. has fallen further behind other nations; 2) at the same time, states have reformed their funding processes to allocate more money to schools with high percentages of poor children, yet the racial achievement gap has hardly changed; and 3) a wide array of academic studies show that what matters most is not how much money is spent but how well it is spent. From hard experience we have learned that simply sending more money to failing schools will not improve them.

Cited in the DCL’s 63 footnotes are studies indicating that targeting large sums to high-quality programs can help disadvantaged children. But the letter virtually ignores a key question: what constitutes a high-quality program? To make matters worse, the material in the footnotes often casts doubt on the bold pronouncements made in the text. For example, to support its claim that “participation in high-quality arts programs…is valuable to all students,” the letter cites four articles, one titled, “Mute Those Claims: No Evidence (Yet) for a Causal Link between Arts Study and Academic Achievement.”

The one exception to this flawed invocation of research is the DCL’s discussion of teacher quality. Citing multiple studies by reputable scholars, it reports that schools with large numbers of minority students tend to employ less-experienced and less-effective teachers, which adversely affects student achievement. To his credit, Secretary Duncan has focused on this crucial source of inequality. But given employment contracts, union rules, and the tendency of experienced teachers to prefer working in less-challenging school environments, this disparity in teacher quality will be particularly hard to change. Schools will find it easier to satisfy the terms of the DCL by moving around a few dollars than by making significant changes in personnel policy.

Shaky Legal Ground

OCR’s legal analysis is on par with its review of the academic literature. Beginning with the obligatory nod to Brown v. Board of Education, OCR goes on to cite several of the Supreme Court’s equal protection decisions to buttress its legal authority. Yet each case cited spells out the remedies appropriate for school systems already found guilty of de jure segregation. Every law student knows that schools that come before the Court with dirty hands are subject to much more onerous conditions than those never found guilty of any constitutional or statutory violation.

The same footnote that contains those citations also offers OCR’s most questionable legal argument: “Numerous State courts have also deemed inequitable access to these educational resources unlawful under their State constitutions.” True—many state supreme courts have required major changes in state education-finance laws. But why did school finance reformers turn to state courts after 1973? Because that year the U.S. Supreme Court issued its most important ruling on the topic, in San Antonio v. Rodriguez (see “Fool’s Gold,” legal beat, Summer 2015). In that landmark case, the Court clearly stated its refusal to enter the school finance thicket. Not once in the DCL’s footnotes does the name of that crucial case appear. Its omission is the specter that haunts the entire document.

In a nutshell, OCR’s legal argument is that school districts and state governments “violate Title VI if they adopt facially neutral policies that are not intended to discriminate…but do have an unjustified, adverse disparate impact on students based on race, color, or national origin.” Under this “disparate impact analysis,” once federal officials determine that the distribution of any resource disadvantages a protected minority, schools must not only “demonstrate that the policy or practice is necessary to meet an important educational goal,” but also show that there is no “comparably effective alternative policy or practice that would meet the school district’s stated educational goal with less of a discriminatory effect.” OCR borrowed much of this language from court decisions on hiring practices based on Title VII of the Civil Rights Act. In the education context, this subjective test grants almost complete control to federal regulators to decide what constitutes an “important educational goal” and a “comparably effective alternative.” In effect, OCR has invented a test that no school district or state department of education can pass, and then given itself authority to determine the appropriate remedy.

 

What makes OCR’s disparate impact analysis all the more remarkable is that it has already been soundly rejected by the Supreme Court. For years the Court has expressed displeasure with the use of disparate impact analysis in employment cases. In Alexander v. Sandoval (2001), the Court insisted that the section of Title VI prohibiting recipients of federal funds from discriminating on the basis of race “prohibits only intentional [emphasis added] discrimination.” The Court refused to enforce Department of Justice rules incorporating the very sort of disparate impact analysis employed here by the Department of Education’s Office for Civil Rights.

OCR will no doubt assert that the Supreme Court’s June 2015 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., supports its position (see “Disparate Impact Indeed,” legal beat, Fall 2015). It does not. That decision was based on the peculiar wording and legislative history of the Fair Housing Act. To make matters worse for OCR, Justice Anthony Kennedy’s majority opinion endorses a limited, deferential understanding of disparate impact analysis, one that bears little resemblance to the demanding test created by the equity DCL.

In Alexander v. Sandoval, the Court did not address whether disparate impact regulations issued under a subsequent section of Title VI could be enforced through nonjudicial means—but only because no one had raised that issue in the case. Spotting a possible loophole in the Court’s rejection of disparate impact analysis, OCR tries to drive its entire regulatory enterprise through it. But here the agency faces another legal problem: OCR claims to use the rule-making authority granted by Title VI, but fails to follow the rule-making procedures mandated by the Administrative Procedure Act (APA) and by Title VI itself. Title VI plainly states that “no such rule, regulation, or order shall become effective unless and until approved by the President.” Only an assistant secretary of education signed the equity DCL.

More important, the APA’s notice-and-comment rule-making procedures clearly apply to regulations of this magnitude. Not since the 1960s has OCR used these standard procedures for establishing Title VI rules. It prefers unilateral announcements of agency policy without any form of public participation or review by other government agencies. Another reason it employs this truncated procedure is to avoid judicial review. Any school district bold enough to confront OCR and clever enough to get its case before a federal judge will put the equity DCL in serious legal jeopardy. Meanwhile, OCR will do whatever it can to stay out of court.

Measuring Education Equity

The heart of the equity DCL is its enumeration of the factors that schools and OCR investigators must take into account when determining whether equity has been achieved. Schools are expected to engage in “periodic self-evaluation” to “identify barriers to equal educational opportunity.” Those failing to undertake adequate “self-assessments” will be subject to full-scale investigations by OCR staff. If anything is clear about the effect of the DCL, it is that schools will be spending a great deal of time performing self-assessments to keep OCR investigators at bay.

What must these self-assessments include? Almost everything. “Simplistic comparisons of per-pupil expenditure levels,” OCR explains, “are often a poor measure of resource comparability” because “there are many factual circumstances that can create varying funding needs that justify differential spending patterns among schools.” Disadvantaged students, it emphasizes, often need more resources than other students. “The ultimate issue is whether funding is provided to each school in the district so as to provide equal educational opportunity for all students.” What goes into this determination? Here is a quick inventory:

Curriculum. To assess “the types, quantity, and quality of programs available to students” of different races, OCR will examine “the range of specialized programs, such as early childhood programs including preschool and Head Start, Advanced Placement and International Baccalaureate courses, gifted and talented programs, career and technical education programs, language immersion programs, online and distance learning opportunities, performing and visual arts…science, technology, engineering, and mathematics (STEM) courses…[and] the overall quality and adequacy of special education programs.”

How will OCR assess and compare the quality of all these programs? How will it determine if a school has enough AP or visual arts courses? The DCL does not say.

Extra- and co-curricular programs. OCR will also evaluate “whether students of different races…participate in a comparable variety of specialized programs—whether curricular, co-curricular, or extracurricular.” To do so, it will consider “the number of extracurricular activities as well as their intensity and content,” “the expertise of teachers, coaches, and advisors,” and “the availability of the necessary materials.”

How does one measure the “intensity” of a drama club or a school band? The “expertise” of a baseball coach or a school newspaper adviser? More unanswered, and unanswerable, questions.

Teachers. OCR will examine “a broad range of information sources when assessing whether a district discriminates based on race in providing access to strong teaching.” This could include “teachers’ licensure and certification status, whether teachers have completed appropriate training and professional development, whether teachers are inexperienced, [and] whether they are teaching out of their field.” Or OCR could “focus on a small subset of these criteria when appropriate.” Still “other investigations will rely upon a holistic analysis of these criteria to better gauge the totality of teacher and staff characteristics and the quality of instruction.” OCR strongly encourages schools to develop “high-quality evaluation systems” that “use multiple measures, including student growth.”

Of course, OCR does not indicate what such a “high-quality evaluation” would look like because it is so difficult to construct and so controversial.

School leadership. OCR will investigate whether there are racial disparities “in student access to effective, well-prepared, and stable school leadership.” OCR rightly claims that such leaders play a key role in attracting, retaining, and motivating good teachers and creating “climates of high expectations and a sense of community.”

But how does one identify “effective” leaders? OCR will consider “their levels of experience, their credentials and certification, [and] whether they have completed appropriate training and professional development”—none of which have proven particularly useful in identifying effective principals in the past. Beyond that OCR has nothing to say on the topic.

Support staff. OCR will examine “the staff-to-student ratios, training, certification, and years of experience of the support staff.” This includes not just guidance counselors, psychologists, librarians, and specialized therapy providers for students with disabilities, but also social workers, health professionals, and paraprofessionals.

Since the range of support staff will differ widely based on student needs, quantitative interschool comparisons will be nearly impossible.

School facilities. Based on the claim that “research has shown that the quality and condition of the physical spaces of a school are tied to student achievement and teacher retention,” OCR will evaluate “the overall physical condition of the school, including features such as paint, maintenance of carpet and lockers, and the absence of vandalism.” Among the factors it will consider are “the location and surrounding environment of school buildings,” “the availability and quality of transportation services,” and “specialized spaces such as laboratories, auditoriums, and athletic facilities.” While recognizing that schools will have different programs and facility needs, it cautions that “the diverse needs of a district cannot justify distributing facilities” in a discriminatory fashion.

OCR fails to explain how it intends to compare the quality of paint, carpeting, practice and performing spaces, laboratories, and the rest of these diverse facilities.

Technology and instructional materials. OCR will “evaluate whether all students, regardless of race, have comparable access to…technological tools.” This analysis will include not only the speed of Internet access, the technical training of teachers, how many hours a day students have access to computers, and whether this technology is available to students with disabilities, but also whether “students have access to necessary technology outside of school and how school districts support students who do not have Internet access at home.” OCR will examine 
the quantity and quality of instructional materials and their “alignment with the curriculum,” “the size, content, and age of a school’s library collection,” and “how often students and teacher have the opportunity to use a library.”

Collecting all this information for every school in a district will be difficult enough. Providing a nonarbitrary comparison of schools on even one criterion will be nearly impossible, given the extent to which OCR requires assessment of the “quality” of educational programs. Nor is there any nonarbitrary way of assigning weights to each of the seven criteria—making any “holistic” assessment a chimera.

The End of Local Control?

Although most of the DCL is devoted to differences among schools in the same district, the Office for Civil Rights emphasizes that it will also examine differences within schools as well as differences among school districts in a state. How OCR will do the former remains a mystery. Will it look at the racial composition of each class and at the “quality” of each teacher? Will it look at the racial composition of AP and advanced math courses, drama clubs, sports teams, and school newspapers? If, as is likely to be the case, fewer black and Hispanic students are enrolled in advanced courses, will that finding be interpreted as discriminatory or a nearly inevitable result of the very racial achievement gap we are trying to reduce? OCR has made its investigatory power so open-ended that it can look at everything and anything that goes on in a school, and it has created a disparate impact standard so rigid that it can always find a violation of federal law.

Buried in a footnote early in the DCL is this political time bomb: “State education officials should examine policies and practices for resource allocation among districts [emphasis added] to ensure that differences among districts do not have the unjustified effect of discriminating on the basis of race.” Remember that under OCR’s disparate impact analysis any disparity in resources must be justified by an “important educational goal.” Funding differences among school districts are based in large part on the differing tax bases of the districts and the political choices made by voters and school boards. In other words, they do not reflect “important educational goals.” This implies that all education funding decisions should be made at the state level, with no room for local discretion. Of course, OCR never explicitly states that its new rules are at odds with the very structure of the American education system—but based on the standards it has established, it is hard to see how local control can survive.

Political Realities

The DCL’s concluding section on remedies makes it clear that OCR expects states to spend more money on schools with high percentages of black and Hispanic children. Correcting discriminatory practices “may require significant financial investment from the district,” and “lack of funding is not a defense for noncompliance with Federal civil rights obligations.” Comparative spending levels should reflect the “extra costs often associated with educating low-income children, English language learners, and students with disabilities.” Yet OCR asserts that it “will not consider Title I funds in a resource equity analysis”—despite the fact that those federal funds are specifically designed to help school districts meet the needs of such disadvantaged students.

It is hard to believe that a letter written by an assistant secretary of OCR will lead states to significantly increase their spending on urban schools or to restructure their education-finance laws. In several large states, schools already face a crisis in the funding of teachers’ pensions. Many state legislatures have gone through years of turmoil responding to education-finance decisions by state supreme courts. The head of OCR recently told Congress that the agency needs a major increase in funding just to investigate the complaints currently before it. The Office for Civil Rights simply does not have the resources to undertake the massive investigations proposed by the equity DCL. Nor does it have the political capital it needs to follow through on its threats.

Both the National Education Association and the American Federation of Teachers have enthusiastically endorsed the equity initiative, but it is highly unlikely that they—or OCR itself—will stand behind this statement in the DCL: “When a district’s adherence to collective bargaining agreements or State law has caused or contributed to discrimination against students on the basis of race, color, or national origin, Federal civil rights obligations may require a school district to renegotiate agreements, revise its personnel policies, or take other steps to remedy the discrimination.” If OCR ever attempted to enforce that mandate, it would invite the judicial review it has every reason to avoid.

How would an investigation of resource allocation in a large school system play out in practice? OCR actually tried this once before, in its ill-fated “Big City Reviews” of the mid-1970s. Despite the fact that Michael Rebell is one of the most enthusiastic and successful of all school finance litigators, his 1985 book written with Arthur Block, Equality and Education, provides a cautionary tale for ambitious federal regulators. In excruciating detail, Rebell and Block show how OCR’s effort to apply disparate impact analysis to schools in New York and four other large cities produced an “eclectic package of standards and methods” that “did not prove viable in practice.” Despite the fact that it achieved only minimal change within the New York City schools, OCR managed to infuriate almost every major figure in the state, ranging from United Federation of Teachers president Albert Shanker to U.S. senator Daniel Patrick Moynihan to U.S. district judge Jack Weinstein, a noted liberal activist. The director of OCR appointed by President Jimmy Carter eventually concluded that the effort had been a serious waste of agency resources.

How Will Schools Respond?

School leaders face a choice. On the one hand, they can devote abundant time and money to collecting the information that OCR demands, massaging the data to make themselves look good, and shifting money around here and there to show they are making “progress.” (For instance, the quickest way to appease OCR will be to increase the number of AP courses available to minority students, regardless of whether this is the school’s most pressing need.)

On the other hand, schools can call OCR’s bluff. They can say, “We applaud your goals and agree that addressing the racial achievement gap must be our top priority. We also agree that improving the quality of teachers in schools with high percentages of minority students is particularly important. But we do not intend to engage in the extensive bean counting that you demand. We prefer to spend money on teachers than on accountants. Remember that if you attempt to terminate our federal funds, we have the opportunity to seek judicial review. We will almost surely win in federal court. Remember also that an adverse judicial ruling will put all your other DCLs in jeopardy. Go ahead—make our day.”

Now that would be interesting.

R. Shep Melnick is Thomas P. O’Neill, Jr., Professor of American Politics at Boston College.

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