Washington Monthly - September/October 2015 - 72

initiative on the high-profile topic of campus sexual violence was bound to empower those university bureaucrats who would pursue maximal risk aversion. Although the department was right to adopt a forceful response to the festering problem of sexual assault on campus, officials apparently did not anticipate-and certainly did not take sufficient steps to forestall-the overzealous response by some administrators. That failure has tarnished the legitimacy and limited the effectiveness of what is otherwise a very worthy initiative. What might the Department of Education have done differently? And how might it fix the problem now? The department has focused its public pronouncements on emphasizing the seriousness of the sexual violence and harassment problem and on underscoring universities' obligations to attack that problem. This is understandable, because the safety Two decades ago, implementation of the Americans with Disabilities Act went much more smoothly. That's because the Disability Rights Section of the DOJ had built up so much credibility on all sides of these fights that most knowledgeable observers, most of the time, regarded its compromises as Solomonic. and educational opportunities of many women are at stake, and too many schools ignored the problem and disregarded their obligations for many years. But although the department has spelled out what schools must do in great detail, it has not been as clear about the limits of their obligations. Alas, this was entirely predictable given the OCR's structure and functions-and the fraught context of campus sexual assault. Since the 1960s, when it was part of the Department of Health, Education and Welfare, the OCR has largely served as a complaint-processing organization. With the equivalent of between 500 and 600 full-time staff, the office reviews thousands of complaints each year (just under 10,000 in the 2014 fiscal year). These complaints allege that recipients of federal educational funds have violated any one of several federal laws prohibiting discrimination-not just Title IX, but also Title VI of the Civil Rights Act of 1964 (which prohibits race discrimination), as well as prohibitions 72 September/October 2015 on age and disability discrimination. Just to investigate and adjudicate each of these complaints takes substantial staff time. Throughout its history, the office has fought major backlogs. In the 1970s and '80s, the OCR labored under strict court-imposed deadlines for taking action on complaints. By the time the D.C. Circuit (in an opinion by then Judge Ruth Bader Ginsburg) finally lifted the court orders in 1990, the agency's orientation was firmly set. Although the OCR has a vital role in setting policy, its principal interactions with the schools it regulates occur through individualized, adversarial processes in which the agency investigates a complaint and attempts to work out a resolution, all with the threat of withholding federal funds dangling over the school's head. This orientation left the OCR poorly positioned to respond to the pressure it faced, early in the Obama administration, to address the problem of sexual harassment and violence on campus. The pressure was more than amply justified. Discriminatory harassment and violence appears to have been widespread. Yet colleges remained complacent, and the OCR focused its Title IX energies in the Bush administration on other issues (notably loosening restrictions on single-sex education and requirements for gender equity in athletics). The assistant secretary tasked with responding to those pressures in 2011, Russlynn Ali, was an able veteran of civil rights and education reform groups, but she had no experience working in higher education administration. Nor did her successor Catherine Lhamon, an incredibly talented civil rights attorney who issued the OCR's updated guidance document in 2014. In formulating and rolling out the agency's new policies on sexual harassment, Ali and Lhamon needed to rely on career staff with deep knowledge of and relationships in college and university faculties and administration-knowledge and relationships that could help them understand the importance of drawing clear lines stating what universities need not do as well as what they must do. But after so many years with an orientation toward resolution of individual complaints, OCR staff had not developed the capacity to provide that kind of advice. And when the agency, pressured to act, issued its guidelines in 2011 and 2014, university faculty and leaders felt like the requirements came out of nowhere and did not reflect an appreciation of important academic values. By failing to develop and exploit close information-sharing relationships, the OCR has put the legitimacy of its important efforts to fight sexual violence on campus at risk. How might the OCR have done better? An example of the path not taken can be found in another government civil rights enforcement agency-the Disability Rights Section (DRS) of the Justice Department's Civil Rights Division. As a young career Department of Justice lawyer in the early years of the Americans with Disabilities Act, I had a chance to see how the staff of the DRS unveiled and began enforcing the ADA's obligations on businesses, government agencies, and schools. (Later, in the first term of the Obama administration, I had the honor of supervising the DRS as a political appointee at the Justice Department.)

Table of Contents for the Digital Edition of Washington Monthly - September/October 2015