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Law professor fact-checks bogus claims that Department of Ed ‘rolls back’ civil rights

When the acting chief of the Office for Civil Rights told field staff this month to investigate the complaints they receive – and not wildly speculate about what else might be wrong at a targeted school – the ProPublica headline said the Department of Education “rolls back civil rights efforts.”

It was an uninformed and ludicrous headline that portrayed novel and problematic procedures launched by the Obama administration as an “indispensable civil right,” according to a law professor and author of a forthcoming book on the “transformation of Title IX.”

Boston College’s R. Shep Melnick does a thorough fact-check of what OCR had been doing and the direction it’s headed now in an essay for EducationNext.

Melnick is no fan of this administration or the department’s new leadership, but he brings cold, hard data to bear on the U.S. Commission on Civil Rights’ wacky claim that OCR can’t do its job if its budget is cut:

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 billion. 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.

Its spike in caseload is partly attributable to three filers who together filed more than 7,000 complaints in two years: “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?” Melnick says.

Not only did President Obama’s OCR abandon “its policy for decades” of only announcing investigations after they concluded – threatening colleges with months of bad publicity if they ever got investigated – but it opened a “full-blown investigation” for every complaint, taking years and countless staff hours for both OCR and a targeted institution.

Because of its systemic practice of open-ended “compliance reviews,” OCR has resolved just 62 of 399 sexual-assault investigations it has started since 2011, the year of its infamous “Dear Colleague” letter, Melnick says.

This leaves students who file complaints in the lurch for years, as even fans of Obama’s OCR complain, and it drains precious time and money from institutions who are going to be painted as guilty regardless of what the open-ended investigation turns up:

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 want into your dresser and your socks are 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.

OCR has blatantly violated Supreme Court precedent on Title IX, but schools are too afraid to challenge the office and risk their federal funding, Melnick says:

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. …

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.

The Trump administration has a chance to relaunch its reputation “[b]y 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,” Melnick said.

Read the essay.

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