By Matt Stroud at Bloomberg Business
Out of nearly 9,000 discrimination complaints filed with the Department of Education in the past 11 years, none ended with the DOE pulling federal funding from a school, newly public data show. The absence of that punishment—called enforcement—helps illustrate the DOE’s power to compel schools to handle complaints before they get that far. Among the cases the DOE declined to enforce were 118 cases of alleged sexual violence and more than 1,000 involving other forms of sexual harassment, including insults, slurs, physical harassment, and gender stereotyping.
That’s according to documents published by news website Muckrock last week, after it received a 302-page list of Title IX complaints from the DOE in response to a federal Freedom of Information Act request. Title IX is the 1972 federal law banning sexual discrimination in any education program that receives federal funding.
The law is a potent tool for activists attempting to challenge policies that may allow sexual violence to occur on university campuses. In response to a Bloomberg records request earlier this year, the DOEdisclosed that 95 colleges were being investigated regarding 98 complaints of sexual violence on campus. The DOE documents released last week reveal far more detail about the landscape of Title IX complaints, including which complaints are most common, which universities tend to be most targeted by discrimination complaints, and how complaints are typically resolved.
The vast majority of Title IX cases involve athletics. Nearly half—just shy of 4,000—focus on one of 15 areas within the general athletics statute of Title IX. Most of those fall within the “equal opportunity” clause, which reads: “A recipient [of federal funding] which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.” Beyond athletics, 32 percent of complaints—nearly 3,000—come under the “discipline” statute. Sexual harassment comprises more than 1,000 of these complaints; 118 involve sexual violence.
Although neither school will likely celebrate the distinction, two Pennsylvania state-related universities—Temple University in Philadelphia and Penn State in State College, Pa.—top the list of schools receiving complaints under Title IX. Both are also on a list of 55 colleges under investigation over their handing of sexual violence incidents on campus.
But of course, a complaint is not a conviction. And if the DOE data released last week show anything, it’s that most Title IX complaints are dismissed outright.
From 2012 to 2013, the number of Title IX complaints nearly quintupled. Brett Sokolow, whom BuzzFeed called “the most successful sexual assault consultant in the country,” attributed that rise to a 2011 “Dear Colleague Letter” released by the DOE to make it clear what colleges and universities must do to combat sexual harassment on campus. He also attributes it to the efforts of such organizations as Know Your IX, which are designed to help students combat sexual violence through Title IX.
The rise is “mostly because of the efforts of Know Your IX, in light of the 2011 DCL,” he said.
As for why none of these cases end up causing enforcement violations, a DOE spokesman said in an email that “the vast majority of cases where we identify a civil rights law violation, [DOE’s Office of Civil Rights, which carries out Title IX investigations] reaches an agreement with the institution to remedy the situation without having to withhold money.”
“Not only is this approach required by law, we believe it is the best way to ensure quick and effective remedies for students affected by civil rights violations,” the spokesman wrote.
There are two additional explanations for lack of enforcement, depending on which side of the political aisle you sit.
On one side is Joseph Cohn, legislative policy director of the Foundation for Individual Rights in Education, which advocates for First Amendment rights and religious freedom on campus. To Cohn, the answer is fairly simple: A university can rake in hundreds of millions in federal funding annually for just research and development, let alone for each of its students who take advantage of federal funding to pay for tuition. If it comes under scrutiny by the DOE and challenges or refuses to enact suggested Title IX changes, the DOE has the power to strip away all of that university’s federal funding as punishment. So it doesn’t pay—literally—to protest the DOE’s findings.
“DOE has all the leverage,” Cohn says. “So much is at stake, so no school has shown any willingness to fight back. They all fold.”
Cohn concedes that Title IX is an important law that helps to keep campuses fair. “But rational people can question an enforcement mechanism that provides a penalty so severe that the government is never required to prove that it’s right—because no one’s willing to risk losing.”
Wendy Murphy, a lawyer and adjunct professor at the New England School of Law in Boston, has a different take. She says the lack of enforcement or fines against universities represents weakness. DOE doesn’t enforce because its policies have no teeth. “It’s worse than that,” she says. “They’re not even biting with gums.”
“When you look at the data, enforcement of these policies against sexual violence and harassment should be a priority,” she says. “And politically speaking, it’s not a priority because women have not made it a priority.
“I often use Ferguson as an example of what women and students should be doing if they really want the power of the federal government to be brought to bear on schools that aren’t compliant—and we haven’t yet reached that point where there’s marching in the street and lying down in the highways.
“In a free democracy that’s exactly what people should be doing,” she says. “But we don’t see that yet.”