Friday, January 31, 2014

Members of Congress Seek Disclosure from OCR About Title IX Enforcement

Just the other day, a reader emailed me to ask if I knew how many Title IX complaints OCR handled last year -- a question I get from time to time.  You'd think this would be an easy one to answer, but it's not.  OCR provides an annual report to Congress, but it's always retrospective and it doesn't provide a detailed breakdown of the nature of various complaints.  There's no database of complaints, investigations, findings and resolutions.  As a result, it's difficult to get a handle on the big picture of public enforcement of Title IX.

Turns out I'm not alone in thinking this.  Members of Congress have reportedly asked the Department of Education to provide more transparency about which colleges and universities are under investigation, have been the subject of complaints, or have entered into resolution agreements as a result of failures (or alleged failures) to adequately respond to sexual harassment and sexual assault.  

While I would extend this request for disclosure to other applications of Title IX -- like athletics -- I understand why Congress would be particularly interested in disclosure of OCR's enforcement of Title IX violations that threaten students' personal safety.  As one legislator explained, "American families have a right to know when [a] history [of sexual violence] is present" at an institution, and what the government is doing to try to address the problem. 

While it remains to be seen how OCR will respond to this request, there are theoretical reasons to believe that such a request will be effective.  Congress could, if it wishes, pass legislation requiring the agency to disclose this information, so the agency may be motivated to proactively respond to the legislators' informal request in order to avoid such a mandate. Moreover, like all agencies, the Department of Education receives its funding from Congress and is subject to the oversight of congressional committees.  Keeping members of Congress happy helps ensure that the agency's appropriations aren't targeted and that agency officials don't have to testify at uncomfortable committee hearings. The timing of this request also adds to its potential to be effective.  The President has just announced a task force seeking to improve enforcement and compliance in this area.  Having made this public commitment, there is certainly a risk of political fallout if the administration turns down a request to provide more information about how it is handling the problem on its end.