Trends in Federal Government Regulatory Enforcement in Higher

Education

An Overview

Susan K. BurgessDirector of University Compliance

Office of Legal Affairs

Program Participation Agreement

An agreement between a postsecondary institution and the Secretary of DOE that permits participation in Title IV HEA student financial aid programs….. subject to terms and conditions.

Terms and Conditions

Comply with:

Campus security policy and crime statistics disclosure requirements (Clery Act)

Title VI of the Civil Rights Actbars discrimination on the basis of race, color or national origin

Title IX of the Education Amendments of 1972bars discrimination on the basis of sex

Terms and Conditions

Comply with:

The Age Discrimination Act of 1975

FERPA

Student financial aid and eligibility regulations

Reporting of intercollegiate athletics participation rates and financial support data annually

Equity in Athletics Disclosure Act (EADA)

Maintain accreditation

Agency Enforcement

Office of Civil Rights (OCR), U.S. Department of Education responsible for enforcement of most PPA obligations

Conducts Investigations

Periodic compliance reviewsComplaints

Resolution agreements and Monitoring

Other Enforcement Agencies

Offices of the Inspector General (OIG)Independent units within each federal agency whose duty it is to combat waste, fraud, and abuse in the programs and operations of that agency.

Department of Justice (DOJ)Civil Rights Division - Enforces federal nondiscrimination laws.

Criminal Division - When use of force, threats, or intimidation characterize a violation of an individual's civil rights.

Title VI of the Civil Rights Act of 1964

The Use of Race in the University Admissions Process

Regents of University of California v. Baake (1978)

Special admissions program reserved 16 out of 100 seats in UC Davis SOM’s 1st year class for “Blacks, Chicanos, Asians and American Indians.”

Baake denied admission. Alleged discrimination on the basis of race in violation of Title VI and the Equal Protection Clause of the 14th Amendment.

Issue: Did UC Davis violate Title VI and the Equal Protection Clause by its use of racial “set-asides” or quotas its admissions process?

SCOTUS applied strict scrutiny review:Must have a compelling interest for use of race as a determinant in the admissions process

Benefits that flow from a diverse student body may be a compelling interest

Use must be “narrowly-tailored”Consideration of race-neutral alternativesCase-by-case basis review including variety of factorsNo negative impact on students of other racial groupsPeriodic review to determine ongoing necessity

HELD: UC Davis’ use of racial quotas was not narrowly tailored and violated Baake’s constitutional rights

Fisher v. University of Texas at Austin

University of Texas admits applicants who graduate in top 10% from a Texas high school.

Others undergo admission review that considers talents, leadership qualities, family circumstances, and race.

Plaintiffs denied admission alleged discrimination on basis of race.

5th Circuit Court of Appeals held plaintiff had to rebut a presumption that UT acted in bad faith.

Fisher v. University of Texas at Austin (continued)

Plaintiff appealed to the SCOTUS in 2013.

Ruled lower court failed to apply strict scrutiny and sent the case back to the 5th Circuit.

5th Circuit ruled in 2014 that UT may use race as part of a holistic admissions program where it cannot otherwise achieve diversity.

Plaintiff petitioned the SCOTUS for rehearing. Case will be heard again on December 9, 2015.

OCR Complaint – N.C. State 2003

Allegation that race and national origin used in undergraduate admissions decisions.

One-half admitted students met presumptive admit criteria – race not considered.

Second and final reviews were holistic and individual to each applicant – many factors including race.

OCR reviewed randomly selected admission files for each of four university colleges.

NCSU demonstrated:No use of quotas , points or weightsMost admitted based on academic criteria and test scores – individual/holistic review of applicantsDemonstrated interest in achieving educational diversityCampus feedback regularly solicitedThe review of selected application files substantiated NCSU’s admissions policies

OCR found NCSU’s consideration of race and national origin were consistent with Title VICase closed November 27, 2012

Title IX of the Education Amendments of 1972

Sexual Harassment and Sexual Violence

OCR’s “Dear Colleague” Letter - April 2011

Sexual harassment of students, includes acts of sexual violence, and is a form of sex discrimination prohibited by Title IX.

OCR’s guidance requires schools to take immediate action to eliminate harassment, prevent its recurrence, and address its effects if it knows, or reasonably should know, about student-on-student sexual harassment.

Requirements

Prompt investigationsSteps to end the sexual violence and end recurrenceProtect the complainant as necessaryProvide a grievance procedure to file complaints of sexual harassment and sexual violenceUse the “preponderance of the evidence” standardPublish a notice of nondiscriminationProvide education and training programs to students and staffHire a Title IX Coordinator

Ohio State

OCR initiated a Title IX compliance review in June 2010.

OSU received and investigated complaints of sexual harassment against its marching band members in 2011 and 2012 while the review was still ongoing

A resolution agreement was entered into between OSU and OCR on September 8 2014 that required OSU take the following actions:

Develop defined roles and responsibilities for its Title IX Coordinator.

Review, revise and submit all related policies and procedures for OCR review and approval in 30 days.

Train all university staff who interact with students in 9 months.

Revise all student orientation sessions for returning students. Develop specialized training for band, fraternities/sororities & student-athletes in 30 days.

Review two previous academic years of sexual harassment/violence complaints made for patterns or areas in need of further action.

Establish focus group of students and administrators for input on strategies to increase Title IX awareness

Marching BandComplete evaluation of band leadershipCreate committee to change band cultureRevise band policies and procedures to include Title IX obligations and reporting requirementsProvide counseling for victims and training for band members (hazing, sexual violence, adherence to school values)

30-60 day turnaround requirement for most itemsQuarterly reports and OCR monitoring for 3 years.

University of Virginia

OCR inquiry opened in June 2011

A complaint in 2012 triggered a compliance review.

Rolling Stone Magazine article “A Rape on Campus,” not published until November 19, 2014.

Had many elements of a Title IX compliance program in place, engagement of a third-party “Equity Consultant” in December 2014.

University of Virginia - Findings

Policies on SH/SV did not provide for prompt resolution of complaints – no timeframe

Several complaints filed informally and also under the formal hearing process were not handled promptly (reviewed complaint records back to 2008)

Sanctions could be issued without an independent investigation

OCR determined that a basis for a hostile environment existed for failure to promptly respond to complaints of SH/SV

University of Virginia - Findings

Notice of Nondiscrimination was not adequately distributed

Failed to take action in 22/50 reports (56%)

Of the 22 reports, no evidence of investigation in 23 (69%)

Inadequate investigation and resolution of student complaints of SH/SV against employees

University of Virginia Resolution Agreement

Continue to revise policies to make them more user-friendly and accessibleEnsure regular training of all university community members in SV/SHDevelop tracking systems to make sure all complaints are adequately and promptly investigated and resolvedImprove outreach to and feedback from students – climate assessments and focus groups

University of Virginia Resolution Agreement

Annually submit to OCR copies of all reports alleging SH/SV and documentation of investigation and resolution

Agree to monitoring by OCR for a period of three years

Resolution agreement dated September 17, 2015

Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990

University of Cincinnati

OCR compliance review initiated 5/6/2013

“Dear Colleague” letters in 2010 and 2011 – emerging technologies must be accessible to persons with disabilities, especially those with visual impairments.

“..opportunity to acquire same information, engage in same interactions and enjoy the same services as sighted persons.” – OCR

University of CincinnatiMust designate a Section 504/Title II Coordinator

Nondiscrimination notices not generally available to students, applicants or employees

No method to monitor if university website material was accessible to visually impaired students

Documents not published in accessible format

University of Cincinnati

No video captioning for deaf and hard of hearing studentsResolution agreement – 12/12/2015

Develop and distribute a Notice of NondiscriminationAdopt a web accessibility policy and website remediation planConduct audits of university webpagesProvide OCR with reports of efforts for 3 years

QUESTIONS?