oversight

Resolution of Discrimination Complaints by the Department's Office for Civil Rights

Published by the Department of Education, Office of Inspector General on 2015-12-10.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                                UNITED STATES DEPARTMENT OF EDUCATION
                                    OFFICE OF INSPECTOR GENERAL

                                                                                                                  AUDIT SERVICES

                                                       December 10, 2015
                                                                                                             Control Number
                                                                                                             ED-OIG/A19N0002

Catherine E. Lhamon
Assistant Secretary
Office for Civil Rights
U.S. Department of Education
400 Maryland Avenue, S.W.
Washington, DC 20202-4300

Dear Ms. Lhamon:

This final audit report, titled The Resolution of Discrimination Complaints by the Department's
Office for Civil Rights, presents the results of our audit. The objective of our audit was to
determine whether the Department of Education’s (Department) Office for Civil Rights (OCR)
resolves discrimination complaints in a timely and efficient manner and in accordance with
applicable policies and procedures.



                                                      BACKGROUND


OCR’s mission is to ensure equal access to education and to promote educational excellence
throughout the nation through vigorous enforcement of civil rights laws. These laws prohibit
discrimination on the basis of race, color, national origin, sex, disability, and age in all programs
and institutions that receive financial assistance from the Department.
OCR derives its authority from the following Federal civil rights laws: 1

       •   Title VI of the 1964 Civil Rights Act,
       •   Title IX of the Education Amendments of 1972,
       •   Section 504 of the Rehabilitation Act of 1973,
       •   The Age Discrimination Act of 1975,
       •   Title II of the Americans with Disabilities Act of 1990, and
       •   The Boy Scouts of America Equal Access Act.



1
    See Attachment 1 for descriptions of the Federal civil rights laws noted.


                                    400 MARYLAND AVENUE, S.W., WASHINGTON, DC 20202-1510

                    Promoting the efficiency, effectiveness, and integrity of the Department’s programs and operations.
Final Audit Report
ED-OIG/A19N0002                                                                                   Page 2 of 22
Although OCR provides guidance to stakeholders to prevent civil rights violations and performs
proactive compliance reviews that target specific issues of discrimination, most of its work is
driven by public complaints. Complaints of discrimination can be filed by anyone who believes
an education institution that receives Federal financial assistance has discriminated against
someone on the basis of race, color, national origin, sex, disability, or age. A person or
organization can file a complaint on behalf of another person; however, in most instances, the
victim's consent is required for OCR to proceed to investigation. A complaint must be filed
within 180 calendar days of the date of the alleged discrimination, unless the time for filing is
extended by OCR for good cause shown under certain circumstances.
OCR’s primary procedures for handling discrimination complaints are prescribed in its Case
Processing Manual (CPM). The CPM provides general instruction for evaluating, planning for
and investigating complaints, issuing findings, and securing resolution agreements that remedy
discriminatory policies or practices identified by OCR. 2 Complaints can include multiple
allegations of discrimination which can involve one or more of the Federal civil rights laws
noted above.
OCR’s complaint evaluation, investigation, and resolution activities are conducted by its
12 enforcement offices throughout the country. Each office is led by a Regional Director, Chief
Attorney, and Program Manager who supervise the handling of discrimination complaints. Two
Enforcement Directors in OCR’s Office of the Assistant Secretary oversee and advise the
regional offices to ensure procedural consistency. Management and staff in OCR’s headquarters
office in Washington, D.C. provide additional administrative support, coordination, policy
development, and overall leadership. In FY 2015, OCR had 554 full-time equivalents (FTE),
with approximately 90 percent of its FTE located in its 12 enforcement offices throughout the
country and the remaining 10 percent located in its headquarters office.



                                           AUDIT RESULTS


We found that OCR generally resolves discrimination complaints in a timely and efficient
manner and in accordance with applicable policies and procedures. Specifically, we determined
that OCR resolves discrimination complaints in a timely fashion at a high overall rate and does
not have a large backlog of unresolved cases. The primary factors that contribute to OCR’s
timely and efficient resolution of complaints include efficient case resolution methods,
consistency in case investigation practices, and effective case tracking and information
management systems. By resolving complaints in a timely and efficient manner, OCR is able to
respond to complainants quickly and provide prompt relief to complainants who need it.
However, we noted that increasing workload and decreasing resources could have a negative
impact on complaint resolution over time. While we found that staff timely and efficiently
respond to complaints, they may not be able to maintain current levels of productivity if these
trends continue.

2
 Supplemental discrimination and case-specific guidance also prescribes procedures for resolving certain types of
cases.
Final Audit Report
ED-OIG/A19N0002                                                                    Page 3 of 22
We also determined that OCR generally resolves discrimination complaints in accordance with
the CPM and other established policy. We determined that OCR has generally developed clearly
defined procedures that allow regional staff to follow established policy when resolving the
different types of discrimination complaints and allow management to provide clear direction to
regional staff when complications or questions arise. We also noted that OCR management has
created a control environment that ensures the investigative teams understand the importance of
compliance with policies and procedures. As a result, OCR is able to ensure that complaints are
processed and resolved consistently, efficiently, and effectively across the regions, in line with
OCR’s statutory and regulatory responsibilities. However, we determined that two regional
offices were not appropriately maintaining separate files for the Early Complaint Resolution
(ECR) process, and in some instances destroyed or discarded documentation obtained during that
process. Failure to separate ECR records from investigative case files may compromise the
confidentiality of the ECR process and may impact the impartiality and objectivity of the staff
investigating the complaint should ECR not be successful. Additionally, failure to retain ECR
records can provide the appearance that OCR is not competently managing the information it
receives when resolving discrimination complaints. After learning of these practices,
headquarters officials took immediate action to correct the issue.

In its response to the draft audit report, OCR agreed with each of the recommendations. In
addition, OCR stated that it has recently hired two additional staff to perform the duties and
responsibilities of Enforcement Directors which will further contribute to OCR resolving
discrimination complaints in a timely, efficient, and effective manner. OCR also noted it intends
to continue training about consistency with the CPM, including ECR-specific requirements, as
part of its on-going training of staff.

OCR’s comments are summarized at the end of each finding. As a result of OCR’s comments,
we did not make any changes to the audit findings or the related recommendations. The full text
of OCR’s response is included as Attachment 4 to this report.

FINDING NO. 1 – OCR Generally Resolves Discrimination Complaints in a
                Timely and Efficient Manner

We found that OCR generally resolves discrimination complaints in a timely and efficient
manner. However, increasing workload and decreasing resources could have a negative impact
on complaint resolution over time. While we found that staff timely and efficiently respond to
complaints, they may not be able to maintain current levels of productivity if these trends
continue.

In 1999, based on years of experience, OCR established a Government Performance and Results
Act (GPRA) performance measure of 180 calendar days from the date the complaint was
received in which to resolve complaints. Acknowledging that some cases are so complex and/or
sensitive that they cannot be resolved within that timeframe, OCR’s associated performance
target was set at 80 percent. In 2006, OCR added a new efficiency measure -- capping the
Final Audit Report
ED-OIG/A19N0002                                                                                   Page 4 of 22
percentage of over age cases at no more than 25 percent -- to help ensure that there is no
significant backlog of over age cases. 3

To assess OCR’s timeliness of complaint resolution, we analyzed data maintained in OCR’s
Case Management System (CMS) for cases opened in fiscal year (FY) 2009 through FY 2013.
We found that OCR resolved discrimination complaints within 180 calendar days at an overall
rate of 89.6 percent during this time period, with the resolution rate in each year ranging between
87.7 and 92.1 percent as depicted in Table 1. 4 We also noted that the rate at which OCR
resolved complaints within 180 days remained at a high level even with a significant increase in
the number of complaints received. For example, OCR received 3,589 more complaints in
FY 2013 than it did in FY 2009, yet the rate at which OCR resolved complaints within 180 days
was actually higher for FY 2013.

         Table 1. Number of Complaints Received and Percentage of Those Complaints
                                Resolved Within 180 Days

         Fiscal Year            Number of Complaints                 Percentage of Those Complaints
                                     Received                           Resolved within 180 Days
    2009                               6,367                                       88.5
    2010                               6,937                                       87.7
    2011                               7,839                                       89.0
    2012                               7,834                                       89.8
    2013                               9,956                                       92.1
    Overall                           38,933                                       89.6

We further analyzed the data to determine timeliness by complaint resolution type as shown in
Table 2 below. OCR has several categories by which it classifies complaint resolutions.
Specifically, there are five resolution types that are assigned to indicate the manner in which a
complaint was resolved. These include the following:

     •    Dismissals – Complaints that OCR determines it does not have legal authority to
          investigate, are untimely, fail to state a violation of one of the laws OCR enforces, lack
          sufficient detail, or are so speculative, conclusory, or incoherent that they are not
          sufficiently grounded in fact for OCR to infer that discrimination or retaliation may have
          occurred or is occurring.




3
  To calculate the percentage of its caseload that is older than 180 days, OCR divides the number of open cases at
the end of a fiscal year that are over 180 days old by the total number of cases that are open.
4
  Reflects data maintained in OCR’s CMS as of September 10, 2014. Our timeliness calculation excludes the
16 days that the federal government was closed in October 2013, since OCR staff were unavailable to work on any
cases during this time. Additionally, OCR’s CPM requires that certain age discrimination complaints be referred to
the Federal Mediation and Conciliation Service (FMCS) and notes that the time a complaint is being processed
through FMCS, up to 60 days, will not be included in OCR’s case processing time. Therefore, we excluded these
days from our timeliness calculation.
Final Audit Report
ED-OIG/A19N0002                                                                                    Page 5 of 22
    •    Administrative Closures – Complaints that do not meet the criteria for dismissal and are
         subsequently opened, but OCR subsequently determines it cannot proceed on them. This
         includes when the same allegations have been filed by the complainant against the same
         recipient with another civil rights enforcement agency or through a recipient’s internal
         grievance procedures; when allegations have been filed by the complainant against the
         same recipient with state or federal court; when allegations are foreclosed by previous
         decisions of the federal courts, Secretary of Education, or OCR policy determinations; or
         when OCR obtains credible information indicating allegations have been resolved and
         there are no class-wide allegations.

    •    Early Complaint Resolution – Complaints that are resolved voluntarily by the parties
         involved, generally occurring early in the investigative process. OCR serves as a
         facilitator to this process but does not sign, endorse, or approve any agreement reached.

    •    No Violation or Insufficient Evidence – Complaints that are investigated and in which
         OCR determines there is insufficient evidence to support a conclusion of noncompliance.
         These generally involve extensive investigative work prior to resolution.

    •    Closure with Change – Complaints that generally involve extensive investigative work
         and negotiations with the recipient prior to resolution. 5

We noted that OCR dismissed or administratively closed a large majority (69.9 percent) of the
complaints it received during the fiscal years noted. Nearly all complaints that OCR dismissed
(99.7 percent) and administratively closed (95.4 percent) during this time were resolved within
180 days. In fact, we noted that OCR usually dismissed and administratively closed complaints
well before 180 days. For cases received in FY 2013, for example, the median number of days
for dismissals and administrative closures was 43 and 33, respectively. Conversely, we noted
that only 54.7 percent of complaints categorized as Closure with Change were resolved within
180 days. Given that these generally involve the most extensive investigative work and
negotiations this lower rate is not unexpected. We did find that the percentage of these
complaints resolved within 180 days has increased over the last few fiscal years. For cases
received in FY 2013, the median number of days for this resolution type was 177.




5
  “Closure with Change” resolutions are generally the result of investigations in which OCR determines that there is
sufficient evidence to support a conclusion of noncompliance; however, OCR also refers to resolved cases as a
“Closure with Change” when OCR’s investigation caused a change to recipient action even if OCR did not make a
finding or require a resolution agreement.
Final Audit Report
ED-OIG/A19N0002                                                                      Page 6 of 22
        Table 2. Percentage of Cases Resolved Within 180 Days by Resolution Type

     FY        Dismissal     Administrative       ECR       No Violation or      Closure with
   Received                    Closure                       Insufficient          Change
                                                               Evidence
   2009           99.6             95.0           88.5           81.6                 48.2
   2010           99.6             94.4           84.7           75.5                 45.4
   2011           99.9             95.1           80.4           77.5                 48.6
   2012           99.6             95.2           73.9           80.7                 61.3
   2013           99.8             96.9           74.1           81.5                 68.0
   Overall        99.7             95.4           80.3           79.3                 54.7

We also noted that OCR does not have a large backlog of unresolved cases. Only 2.2 percent of
the complaints received in FY 2013 are still unresolved, while the rate of unresolved complaints
received in each year from FY 2009 through FY 2012 is at 1 percent or below. Additionally, as
of September 30, 2013, OCR had only 462 total cases that have been pending for more than
180 days, regardless of fiscal year received.

OCR officials noted that timeliness is just one of the elements that OCR takes into account when
resolving complaints. They noted that while timeliness is very important, developing a high-
quality and consistent product is just as important. OCR officials emphasized that certain cases
require a significant amount of time for review because they want to make sure that all decisions
OCR issues are clear and consistent and because the implications of OCR’s decisions are far-
reaching.

In addition to reviewing CMS data to understand trends in case volume and resolution, we
selected a nonstatistical sample of complaints for review to determine reasons for untimely
resolution and identify any potential systemic efficiency issues. We randomly selected a sample
of 20 complaints that were opened between June 2008 and June 2013 and were unresolved for
more than one year. As a result of our review, we identified a few areas that can potentially
allow a case to age unnecessarily. Specifically, we determined that when cases pass the 180-day
time frame they can become less of a priority for regional staff. Additionally, we determined
that there were communication weaknesses involving status updates for certain cases that
required headquarters review.

With regard to case prioritization, staff from some regions explained that cases that are still able
to meet the 180-day time frame may be prioritized over cases that have already reached that age.
Regional staff noted that even though all cases received are considered important, there is
pressure from OCR’s GPRA requirements to meet timeliness milestones. OCR officials
explained that the message they try to convey to all regions is that older cases should be
prioritized in the same way as a newer case. OCR officials noted that they review data involving
this issue periodically and discuss with regional offices as necessary. In written communication
following our audit exit conference, OCR officials noted that since FY 2010, OCR has conducted
multiple training sessions with enforcement staff nationwide on how to move categories of cases
that are often over 180 days, and since May 2014, OCR has made the closure of older cases a
Final Audit Report
ED-OIG/A19N0002                                                                                   Page 7 of 22
performance standard in the performance agreements of all regional employees who have
responsibility for case processing.

With regard to communication on case status, we specifically noted instances when headquarters
was under the impression that action on a case was due from the region even though review was
actually needed from headquarters before the case could proceed. Nine of the 12 Regional
Directors noted that headquarters officials do not always explain to them the reasons why a
certain case may be sitting at headquarters for extended periods, and prior to the recent change
noted below, Regional Directors did not always feel comfortable introducing this topic for
discussion during weekly meetings or through other communication with the Enforcement
Directors.

In April 2014, the Enforcement Directors began compiling and sharing with the Regional
Directors a list of the cases that are with headquarters for review. The Enforcement Directors
update and share the list every week prior to a conference call that they hold with the Regional
Directors. This allows both parties to quickly resolve any miscommunication over case progress.
Regional Directors have noted that this new process has been helpful in improving
communication about the status of cases.

In written communication following our audit exit conference, OCR officials emphasized that
cases that require headquarters review are the most complex and often the case law regarding the
particular factual scenarios at hand is undeveloped or unclear. They noted the average
percentage of cases that came to headquarters for review in FY 2014 was 5 percent.

Increasing Workload and Decreasing Resources Could Have a Negative Impact on Complaint
Resolution over Time

We noted that OCR’s staffing level has declined between FY 2009 and FY 2013, while the
complaint workload has significantly increased during that time (as noted in Table 1). OCR’s
staffing level spiked in FY 2010 at 568 total staff and has declined every year since. In FY 2013,
the staffing level was at 496. 6 While we found that staff timely and efficiently respond to
complaints, they may not be able to maintain current levels of productivity if these trends
continue.

OCR management and staff repeatedly noted a lack of sufficient staff resources. Staff explained
that resources were already stretched and they are now expected to do more work with the same
or fewer resources, as OCR is increasing the amount of work necessary for case resolution in
certain cases. Additionally, regional staff have other responsibilities in addition to complaint
resolution, such as resolution agreement monitoring, resolution appeal work, providing technical
assistance to stakeholders, and conducting compliance reviews and directed investigations. We
note that for FY 2016, the Department’s budget request for OCR includes a request for an
additional 200 FTE.




6
    Data reviewed was specific to staff in OCR’s 12 enforcement offices throughout the country.
Final Audit Report
ED-OIG/A19N0002                                                                                   Page 8 of 22
Reasons for Timely and Efficient Complaint Resolution

The primary factors that contribute to OCR’s timely and efficient resolution of complaints
include efficient case resolution methods, consistency in case investigation practices, and
effective case tracking and information management systems.

Efficient Case Resolution Methods

We found that OCR uses an array of case resolution methods that allow for timely and efficient
resolution of complaints before or during an investigation. These methods include a Rapid
Resolution Process for certain types of cases, the ECR process, reaching resolution agreements
with recipients prior to OCR’s completion of the investigation, and allowing regional autonomy
to resolve most of the cases received.

        Rapid Resolution Process

In 2013, OCR implemented the Rapid Resolution Process (RRP) as a method of case resolution.
Cases eligible for RRP are limited in scope to certain types of single issue disability allegations.
Enforcement Directors explained that RRP has the same structure of a normal investigation
except that it is expected to be conducted more quickly with fewer administrative requirements.
If a Regional Director determines that a complaint is appropriate for RRP, immediate contact is
made with the recipient to obtain relevant information and determine if the recipient is interested
in immediately resolving or has taken action to resolve the complaint allegation(s). 7

OCR conducted a pilot of the RRP in four regional offices in 2012 and determined that RRP
reduced the resolution time for typical cases that were resolved under this process. Several
Regional Directors have noted that the RRP process improves efficiency in their offices.

        Early Complaint Resolution

The ECR process facilitates the voluntary resolution of complaints prior to completion of an
investigation by providing an early opportunity for recipients and complainants to resolve the
allegations, usually prior to investigation activity being conducted by OCR. OCR determines
whether the allegations are appropriate for the ECR process and attempts to facilitate an
agreement between the two parties.

The ECR process promotes efficiency because when successful, it allows resources that would
have been expended investigating and resolving the case to be applied elsewhere. Several
Regional Directors have noted that the ECR process improves efficiency.

        Resolution Agreement Reached During an Investigation

Regional offices may reach a resolution agreement with a complaint recipient before completing
an investigation when the recipient expresses an interest in doing so and OCR determines it to be

7
 These types of resolutions are coded as either “No Violation or Insufficient Evidence” or “Closure with Change” in
OCR’s CMS.
Final Audit Report
ED-OIG/A19N0002                                                                     Page 9 of 22
appropriate. 8 This type of resolution can promote timeliness and efficiency because OCR can
obtain a resolution agreement with the recipient without spending additional time and resources
to conduct a full investigation if one is deemed unnecessary.

In March 2014, OCR implemented a policy change that allows Regional Directors to pursue such
a resolution agreement without the approval of an Enforcement Director unless the case involves
a sensitive or high-profile area of discrimination.

           Regional Autonomy

We determined that regional offices are given autonomy to conduct most of the investigation and
resolution activities for the cases they receive. For most cases, the Regional Director, Chief
Attorney, Program Manager, or a selected designee, may approve case activities and types of
resolution. Cases deemed by OCR senior management to be sensitive or high-profile in nature
require higher levels of approval but the general autonomy given to the regions increases
timeliness by allowing for fewer administrative requirements and fewer layers of review.

Consistency in Case Investigation Practices

We found that OCR’s case investigation and resolution policies, procedures, and guidance
contribute to efficiency at headquarters and throughout the regions by providing a consistent
framework for conducting investigations and resolving the different types of complaints
received. Those policies, procedures, and guidance are as follows.

           Case Processing Manual

OCR’s CPM is the primary guidance that regional offices use to resolve complaints. The CPM
provides staff with procedures to promptly and effectively evaluate and investigate complaints,
issue findings, and secure resolution agreements that remedy discriminatory policies or practices
identified by OCR. The CPM includes instruction involving activities necessary for each type of
case resolution. The CPM is periodically revised and updated for clarification purposes based on
new information or circumstances, but the document primarily remains a stable source of
guidance for regional offices.

           Supplementary Discrimination-Specific Guidance, Resolution Agreements, and “Dear
           Colleague” Letters

In addition to the CPM, OCR has developed supplementary guidance specific to OCR’s
approach to Title IX sexual violence cases and Title VI discipline cases. Guidance on the
approach for these specific areas provides staff with further clarity and details on how senior
management expects these cases to be conducted. OCR officials explained that if there is a
discrimination issue that is new to OCR and becomes a priority area, OCR will create policy
guidance specific to that issue to ensure regional staff have a framework for handling the case.
We noted this guidance is also periodically revised and updated when necessary.


8
    These types of resolutions are coded as “Closure with Change” in OCR’s CMS.
Final Audit Report
ED-OIG/A19N0002                                                                       Page 10 of 22
OCR also publishes case resolution agreements and “Dear Colleague” Letters on its website to
highlight specific investigation or resolution work of which it wants regional staff to be aware
for consistency purposes. OCR senior management also disseminates these documents to staff
by email and the documents serve as a template for the investigation of similar cases. Similar to
the guidance specific to discrimination type, these documents provide staff with clarity and detail
on the conduct of certain types of cases.

Effective Case Tracking and Information Management Systems

Another factor contributing to the timely and efficient resolution of discrimination complaints is
OCR’s use of case management and documentation systems. OCR uses two information systems
for storing and retrieving case documentation and data -- the CMS and the Document
Management System (DMS). OCR has developed user guides for these systems and currently
uses the CMS and DMS in combination with traditional paper files to maintain evidence and
track case progress. Case documents in DMS are associated with the case record in CMS.

The CMS allows regional staff to record key case dates and track case movement, record
investigation status changes, produce progress reports, and track monitoring activities. Regions
also use the CMS to track case progress against internally established timeframes. These include
timeframes for completion of complaint evaluations, sending letters of notification, scheduling
meetings, and providing draft findings to the Team Leader, Program Manager, or Chief
Attorney. Regions produce reports using CMS data for discussion at weekly meetings with
senior management where case timeframes and planned next steps are discussed. Access to this
type of information improves timeliness by allowing all involved with a case to be aware of case
progress.

The DMS allows regional staff to maintain key case documentation in an electronic format,
which contributes to efficiency by ensuring that relevant case documents are readily accessible to
staff at all levels for analysis, editing, review, and approval. Staff can also use the DMS to locate
documents for cases that are not their own, if they are given access. Reviewing such documents
could improve efficiency by providing templates for similar cases under investigation.

Why Workload is Increasing and Resources are Decreasing

OCR has noted that its public outreach activities combined with the increase in electronic access
among the public has contributed to the significant growth in complaints. OCR has developed a
Pre-Complaint Online Screening Process designed to help potential complainants understand the
scope of OCR’s authority and reduce the number of complaints filed that do not fall under
OCR’s authority. Even so, OCR projects the number of complaints it receives will continue to
increase.

It appears that OCR’s staffing decreases are caused by attrition and flat-lined budgets that have
not allowed for regions to replace the staff they have lost. Additionally, it appears that
investigations are becoming increasingly more time-consuming. For example, in 2014, OCR
increased its number of high-profile investigations addressing sexual violence on college
campuses in response to the White House Task Force to Protect Students from Sexual Assault.
Final Audit Report
ED-OIG/A19N0002                                                                                    Page 11 of 22
These cases are generally more complex and time-consuming as they are focused on
investigations and remedies that are comprehensive and systemic in nature as opposed to
investigations focused on an individual basis. OCR has also received an increasing number of
multi-jurisdictional cases that involve more than one statute under OCR’s jurisdiction.

Overall Effect on Complaint Resolution

By resolving complaints in a timely and efficient manner, OCR is able to respond to
complainants quickly and provide prompt relief to complainants who need it. Regional offices’
ability to resolve complaints before or during an investigation, and without prior approval from
senior management in many cases, allows OCR to better allocate resources to cases that require a
full investigation in order to be resolved effectively.

However, the increased workload and decreased staffing levels, along with pressure involving
timeliness may lead to more stress on staff and less thorough resolution products. While we
found no evidence of this in the cases we reviewed, under the current work conditions staff may
decide to dismiss or administratively close a complaint even if the allegations may require a
more thorough investigation. As we noted above, a large majority (69.9 percent) of the
complaints OCR received were dismissed or administratively closed. Additionally, we noted
that the percentage of dismissals has increased over the past few years. An Enforcement
Director explained there are legitimate reasons for the increase in the percentage of dismissals,
such as a large increase in Title IX complaints that are dismissed due to investigations already
being conducted at the schools in question, a significant increase in the amount of complaints
that do not include victim consent, and an increase in the number of instances where one
complainant submits similar complaints against hundreds of schools without sufficient evidence
of discrimination. However, this Enforcement Director did express concern that the overall
numbers of dismissals may be too high because regions may not be using appropriate discretion
when dismissing some cases, specifically those that require judgment as to whether they are
sufficiently grounded in fact. This Enforcement Director stated that staff may feel overworked
and, as a result, may decide to dismiss cases when they should not be dismissed. The
Enforcement Directors have recently begun conducting a monthly internal review process
(discussed further in Finding 2) to determine if cases are being handled appropriately.

In written communication following our audit exit conference, OCR officials added that for the
fiscal years covered in our audit, more than 70 percent of the dismissals and administrative
closures fell into non-discretionary categories, meaning that OCR was administratively barred
from investigating the claims. This includes OCR lacking jurisdiction over the institution or
allegation, the complainant withdrawing the complaint, or the same complaint being filed by the
complainant in state or federal court or with another civil rights agency. They also noted that for
the limited circumstances where OCR can exercise discretion in determining whether to dismiss
or administratively close complaints, there are clear criteria in OCR’s CPM to assure that OCR’s
determinations are supported. 9


9
 Our review included a determination of whether reasons noted for discretionary dismissals or administrative
closures included in our sample were in accordance with CPM criteria. It did not include an evaluation as to the
appropriateness of OCR’s decisions.
Final Audit Report
ED-OIG/A19N0002                                                                       Page 12 of 22
Recommendation

We recommend that the Assistant Secretary for OCR:

1.1   Continue the practice of sharing and discussing with the regions the list of cases pending
      review with headquarters to ensure they are tracked and processed efficiently.

OCR Comments

In its response to the draft audit report, OCR agreed with the recommendation. OCR explained
that it gives autonomy to its regional offices to conduct most of the investigation and resolution
activities for the cases they receive and noted that while fewer layers of review can result in a
more expeditious resolution, developing a high-quality and consistent product is just as
important as timeliness. OCR stated that the Enforcement Directors are involved in reviewing
cases that involve some of the most complex or novel issues facing OCR. In those situations,
OCR agrees that it is critical for there to be clarity over which cases are with headquarters, so
that there is no confusion about who is responsible for moving the cases forward. OCR noted
that it initially made information about cases pending review with headquarters available to
Regional Directors in February 2013 through the dashboard accessible on their computer
desktop, and began sending out this information through a weekly email to the Regional
Directors in April 2014, which it will continue to do.

OCR also noted that to further its dual interest in timeliness and quality, it has recently hired two
additional staff to perform the duties and responsibilities of Enforcement Directors, doubling
OCR’s capacity in this area. OCR explained that in conjunction with the autonomy already
possessed by the regions and the sharing and discussing on a regular basis the list of cases
pending in headquarters for review, doubling the number of Enforcement Directors will further
contribute to OCR resolving discrimination complaints in a timely, efficient, and effective
manner.

OIG Response

We appreciate the efforts noted by OCR to further contribute to the timely, efficient, and
effective resolution of discrimination complaints. As a result of OCR’s comments, we did not
make any changes to the audit finding or the related recommendation.
Final Audit Report
ED-OIG/A19N0002                                                                                 Page 13 of 22
FINDING NO. 2 – OCR Generally Resolves Discrimination Complaints in
                Accordance with Applicable Policies and Procedures

We determined that OCR generally resolves discrimination complaints in accordance with
applicable policies and procedures, which include requirements from the CPM and other
established policy.

Case Processing Manual Procedures

We determined that OCR’s case resolution practices were generally in compliance with the
CPM. 10 We reviewed a nonstatistical sample of 72 cases for evaluation against CPM
procedures. 11 Our sample consisted of a random selection of one case from each of the five
resolution types from each of the 12 regional offices as well as one case from each office that
was still open and older than 180 days. We evaluated compliance with procedures applicable to
all cases as well as those specific to each resolution type. We reviewed case file documentation
maintained electronically and in hard copy and discussed cases with applicable case teams and
headquarters officials. Overall, we found OCR’s case resolution practices to be in compliance
with the CPM for 40 of the 43 (93 percent) procedural requirements we evaluated (see
Attachment 2). We noted that the most significant area of noncompliance involved the
maintenance of ECR files. The ECR process facilitates the resolution of complaints by
providing an early opportunity for the parties involved to voluntarily resolve the complaint
allegations. We also found notable inconsistencies among regions with regard to how one
procedural requirement was documented.

ECR Files

We found that two regions do not always maintain separate ECR-specific case files as required
by the CPM. Staff from one region explained that it is the practice of the office to maintain a
separate, ECR-specific file only if the OCR facilitator determines that some or all of the records
are especially sensitive. Staff from another region explained that if ECR fails and it is deemed
appropriate to assign the case to a new OCR investigative case team, the region may, depending
on the circumstances of the case, create a new file so that the new case team does not have access
to the ECR documents. Staff from this region further explained that if the case is successfully
resolved through ECR, the case file would technically become an ECR-specific case file at that
point. An OCR official stated that ECR records should be kept separate from investigative case
files regardless of the sensitivity of the ECR records, or whether or not the case is successfully
resolved through ECR, and noted that this is an important procedure that must be followed in
order to maintain ECR confidentiality.

In addition, we found that it is the practice of one region to destroy ECR records after the case is
resolved, another region mistakenly destroyed the ECR-specific file for the case we reviewed,
and ECR records for another case we reviewed were missing. Staff from one region explained
that the OCR facilitators may maintain personal notes regarding their work on a specific ECR

10
   OCR has recently revised the CPM, as of February 2015. The January 2010 version was in effect during the time
period covered by our review. Changes made in the revised version are noted where necessary.
11
   Cases selected for our sample were opened between July 1, 2012 and June 30, 2013.
Final Audit Report
ED-OIG/A19N0002                                                                                         Page 14 of 22
case but those records are destroyed once ECR is terminated. Staff from the region stated they
are aware of confidentiality requirements for ECR but it was just the practice of staff to discard
notes taken during ECR once the case is resolved. The Regional Director stated that it was
expected that this information was being kept in a separate file. Staff from another region
explained that the region does maintain all ECR records in a file that is separate from the
investigative file; however, for the case we selected for review, that separate ECR-specific file
was mistakenly destroyed several months after the case was closed. Management from the
region explained that they are not aware of this occurring in any of the region’s other ECR cases,
and they have addressed the matter with staff to ensure that the separate files are maintained long
term for all ECR cases.

Section 203 of the CPM, Confidentiality of the ECR Process, states that in order to maintain
confidentiality of the ECR process, any notes taken during ECR by the facilitator and/or any
records or other documents offered by either party to the facilitator during ECR will be kept in a
separate file and will not be shared with the staff member(s) assigned to investigate the
complaint. 12

“Guidance for ECR Process in OCR Regions,” issued on January 16, 2009, states that all records
that are generated or obtained by the facilitator during the course of ECR must be maintained in
a file that is separate from the investigative file and under no circumstances are these records to
be discarded or destroyed. It also states that ECR information stored in the DMS will be
maintained in such a fashion that ensures such information is not accessible to OCR staff unless
the facilitator is notified of a need for such access by the office director or his/her designee, or in
the case of a Freedom of Information Act request.

The records retention and disposition schedule specific to OCR, which was approved in
July 2010, 13 states that records received or created in response to discrimination complaints for
all case files other than administratively closed complaints will be maintained for twenty years. 14

Minor Noncompliance Issues

We found one instance where OCR did not appear to inform the complainant of the recipient’s
interest in a Section 302 resolution. 15 A regional staff member acknowledged that the region did
not contact the complainant regarding this issue as required. We also found three instances
where OCR did not maintain a case file index of documents as required. 16 Regional staff
acknowledged that an index of documents was not maintained for these cases. We determined
that the causes for OCR’s minor noncompliance issues with the CPM involve negligible staff
oversights.

12
   OCR has the discretion to suspend its investigation for up to 30 calendar days to facilitate an agreement between
the parties. If an agreement has not been reached, OCR will resume its investigation.
13
   The Department is required to develop and implement records retention and disposition schedules to assure
compliance with National Archives and Records Administration directives.
14
   Records for administratively closed complaints need to be maintained for 6 years.
15
   Section 302 of the CPM states that allegations and issues under investigation may be resolved at any time when,
prior to the conclusion of the investigation, the recipient expresses an interest in resolving the allegations and issues
and OCR determines that it is appropriate to resolve them with an agreement during the course of an investigation.
16
   The CPM updated in February 2015 does not include this requirement.
Final Audit Report
ED-OIG/A19N0002                                                                                 Page 15 of 22
Inconsistency in Case Planning Documentation

While we found that regional offices appear to be conducting required case planning, we noted
that there were inconsistencies across regional offices in how case planning was documented.
Some regional offices use templates specifically designed to document the required case
planning elements, to include discussion of the allegations, jurisdiction, legal issues,
investigation strategy, and resolution agreement. Other regional offices rely on documents that
are used for other purposes but also contain case planning information, such as a final statement
of the case.

Section 301 of the CPM, Case Planning, states that the following essential elements of case
planning will be addressed in every OCR case and placed in the file (unless inapplicable):

                 (a) Allegation(s)
                 (b) OCR’s jurisdiction over subject matter and parties
                 (c) Legal issue(s)
                 (d) Investigation strategy
                 (e) Resolution agreement

It also states that the case file will contain documentation that supports the decisions made with
respect to each of the applicable essential planning elements. 17 The Enforcement Directors
explained that it has been their personal preference to have a document in the case files that
shows how the case team reached its conclusions, what it reviewed, and how it reached its
conclusion regarding case resolution. They expect staff to think about planning throughout the
case and to see elements of case planning in case files, but noted that this was not intended to
turn into a paper exercise for staff.

Regional staff explained that some planning documentation is developed throughout the life of
the case, and that the final versions of the living document that began as the planning
documentation become fact sheets used for reporting on the collected evidence necessary for
case resolution.

Policy Specific to Postsecondary Education Sexual Violence Cases

During our audit, OCR became heavily involved in a new, high-profile initiative focused on
sexual violence at postsecondary institutions. As a result, we included in our review an
additional nonstatistical sample of 19 cases of this case type to assess compliance with applicable
OCR guidance specific to this issue as well as applicable procedures in the CPM. We
determined that all of the cases we reviewed were opened and/or resolved in accordance with the
OCR policy guidance specific to postsecondary education (PSE) sexual violence cases and with
the applicable procedures in the CPM.


17
  The February 2015 version of the CPM includes clarifying language involving the documentation requirements
for case planning investigation strategy. The policy now requires that the documentation necessary includes what
data and/or information are necessary to resolve the case and the means and methods OCR will employ to obtain the
relevant data and/or information.
Final Audit Report
ED-OIG/A19N0002                                                                     Page 16 of 22
OCR’s “Approach to Title IX PSE Sexual Violence Cases,” dated January 28, 2014, states that
OCR will generally approach the investigation and resolution of PSE sexual violence cases in a
broad fashion. OCR will review the adequacy and implementation of institutions’ policies and
procedures; training for administrators, staff, and students; the overall campus climate; and
student awareness of resources and complaint policies and procedures. The guidance notes that
OCR will not address sexual violence issues one complaint at a time but will use a class-wide
approach to investigating and resolving both individual and class sexual violence complaints. It
also notes that the investigation will include examination, determination, and/or resolution, as
appropriate, regarding any individual allegation.

The 19 cases we reviewed consisted of a random selection of 10 PSE sexual violence cases
opened since October 1, 2013, to determine if these cases were opened in accordance with
applicable procedures. To obtain insight on how OCR approaches decisions on opening cases
when the same school already has an open sexual violence case or compliance review, we also
judgmentally selected one case that was opened during this time period after another sexual
violence case at the same school was closed, and three sexual violence compliance reviews at
schools that also had open sexual violence cases. Additionally, we judgmentally selected a
sample of five PSE sexual violence cases and compliance reviews resolved since
October 1, 2013, to determine if they were resolved in accordance with applicable procedures.

To perform our analysis we reviewed electronic and hardcopy case files and discussed the cases
with applicable case teams to determine whether there were any concerns with the case approach
and resolution. We noted that each of the cases opened for investigation was conducted with a
class-wide approach, which generally means that OCR reviews the school’s response to all
complaints of sexual assault or sexual violence within a specified time frame, usually 3 years. In
general, when OCR receives a complaint it will review only the issues specific to that individual
complaint, but for certain types of complaints, such as those alleging sexual violence at a
postsecondary institution, OCR will look more broadly at the practices of the entity under
review.

Reasons for General Compliance with Procedures

We determined that OCR has generally developed clearly defined procedures that allow regional
staff to follow established policy when resolving the different types of discrimination complaints
and allow management to provide clear direction to regional staff when complications or
questions arise. Clearly defined procedures also allow senior management to appraise office
practices quickly and effectively to ensure compliance with established policy and procedures.

We determined that OCR management has created a control environment that ensures the
investigative teams understand the importance of compliance with policies and procedures. The
Enforcement Directors explained they communicate regularly with senior management and have
almost daily communication with the Regional Directors. They explained there is a weekly call
held with all Regional Directors to ensure OCR direction and consistency in operations.
Enforcement Directors also stated that their key day-to-day responsibilities include overseeing
the progress and operating procedures of regional offices and working with OCR senior
Final Audit Report
ED-OIG/A19N0002                                                                                  Page 17 of 22
management in developing and providing direction to regions on implementing OCR strategic
goals and initiatives.

We noted that OCR policy requires certain resolution products to be reviewed by management at
multiple levels. Discrimination-specific guidance, including sensitive issue guidance, requires
that certain case resolution activities be reviewed and approved by senior management.

We noted that the Enforcement Directors began performing monthly internal reviews of regional
cases in March 2014. The Enforcement Directors explained the purpose of these reviews is to
determine if cases are being handled in accordance with policies and procedures. They noted
that the status of the case plays an important role in the depth of review, as some cases in
evaluation status are only reviewed for a few specific items while cases with resolution
agreements in place may require a more comprehensive review. The Enforcement Directors
stated that they review a total of 60 cases each month, which are compiled from each of the 12
regions. 18 They said these are high level reviews that generally do not interfere with the work of
the regional teams.

The Enforcement Directors noted that the benefits of the reviews include the correction of issues
involving timely entries into the CMS and DMS systems and process improvements involving
complaint evaluation and contacting complainants for consent forms and other information.
They said the reviews also provide an opportunity to consult with the region to correct the
direction of an investigation or see if investigations are stuck and how to get them moving again.
One Regional Director noted that a review identified issues related to complaint intake
procedures. As a result, the Regional Director addressed the issue through staff training on
intake procedures.

With regard to maintenance of ECR-specific case files, we noted that regional staff appear to
believe they were satisfying the intent of the policy through their practices. We also noted that
some regional staff did not appear to be aware of ECR-specific policy guidance and records
management policy. After learning of these practices, OCR senior management took immediate
action to begin correcting the issue. In written communication following our audit exit
conference, OCR officials noted that the Regional Directors of the two regional offices that had
these problems were informed that they must develop and implement training for all staff to
ensure they have a clear understanding of the requirement to maintain ECR notes, records, and
documents. Accordingly, the Regional Directors were required to develop and implement
training for all staff that clarifies the requirement and submit a plan detailing when and how
often such training will be conducted, as well as an assurance that all regional office staff will
receive the training. Further, all 12 regional offices have been required to report how they will
monitor their office’s ECR practices to ensure they remain consistent with the CPM.




18
  Cases reviewed include 44 selected at random, 8 cases with resolution agreements, and 8 cases with an ongoing
investigation status.
Final Audit Report
ED-OIG/A19N0002                                                                       Page 18 of 22
Overall Effect of General Compliance with Procedures

As a result of general adherence to the CPM and other policies, OCR is able to ensure that
complaints are processed and resolved consistently, efficiently, and effectively across regions, in
line with OCR’s statutory and regulatory responsibilities. However, failure to separate ECR
records from investigative files may compromise the confidentiality of the ECR process and may
impact the impartiality and objectivity of the staff investigating the complaint should ECR fail.
This may affect OCR’s ability to provide fair treatment to the complainant or recipient during the
investigation and resolution process for related or separate cases. Failure to retain ECR records
can provide the appearance that OCR is not competently managing the information it receives
when resolving discrimination complaints.

Recommendations

We recommend that the Assistant Secretary for OCR:

2.1       Continue the practice of internally reviewing cases each month, and consider occasionally
          tailoring the monthly reviews to specifically review certain procedures, such as complaint
          dismissals. 19

2.2       Ensure that regions are made aware of and understand all policy involving the
          maintenance of ECR-specific files and the maintenance of ECR records.

2.3       Develop a mechanism to ensure consistency in documenting case planning, such as
          standard templates with required information.

OCR Comments

In its response to the draft audit report, OCR agreed with the recommendations. In response to
Recommendation 2.1, OCR explained that the recent addition of two Enforcement Directors will
result in double the resources devoted to reviewing cases as well as to day-to-day oversight of
the progress and operating procedures of the regional offices. OCR further explained that its
monthly internal case reviews already encompass complaint dismissals, but it intends to both
continue and expand its internal case reviews and continue to occasionally tailor them to review
certain procedures when appropriate.

In response to Recommendation 2.2, OCR described the specific actions it has taken to resolve
the variance from the ECR requirements. OCR noted that in the two regions where the ECR
problem was detected by OIG, the Regional Directors were required to develop training for all
their staff to ensure that they have a clear understanding of the existing ECR requirements, to
submit a plan to headquarters detailing when such training was implemented and how often such
training will be conducted, and to submit an assurance that all their staff receive such training.
In addition, OCR noted that all 12 regional offices were required to report on how they will
monitor their office’s ECR practices to ensure they remain consistent with the CPM. OCR also

19
     See related concerns in Finding 1.
Final Audit Report
ED-OIG/A19N0002                                                                    Page 19 of 22
noted that it intends to continue training about consistency with the CPM, including ECR-
specific file requirements, as part of its on-going training of staff.

In response to Recommendation 2.3, OCR stated that the CPM was written to allow regional
offices flexibility in how they document their case planning. However, OCR did note that
consistent with our recommendation, it will provide the regional offices with guidance that will
help ensure more consistent manners of documenting the case planning that is already taking
place.

OIG Response

We appreciate the efforts noted by OCR to improve compliance with the policies and procedures
for the discrimination complaint resolution process. As a result of OCR’s comments, we did not
make any changes to the audit finding or the related recommendations.


                 OBJECTIVES, SCOPE, AND METHODOLOGY


The objective of our audit was to determine whether OCR resolves discrimination complaints in
a timely and efficient manner and in accordance with applicable policies and procedures.

To accomplish our objective, we gained an understanding of internal control applicable to OCR’s
process for resolving discrimination complaints. We reviewed applicable laws and regulations,
GPRA performance measures, and the Government Accountability Office’s (GAO) “Standards
for Internal Control in the Federal Government.” We reviewed OCR’s complaint resolution
policies and procedures, to include OCR’s CPM as well as applicable internal guidance,
including guidance pertaining to OCR’s processes for resolving complaints specific to
discrimination types. We also reviewed OCR’s organizational structure, staffing level, and
budget requests. To identify potential vulnerabilities, we reviewed prior Office of Inspector
General (OIG) and GAO audit reports with relevance to our audit objective.

We conducted discussions with OCR officials in Washington, D.C. and with Regional Directors
and staff involved in the complaint resolution process. We also reviewed data maintained in
OCR’s CMS, DMS, and hardcopy files with regard to specific cases included in our review as
well as overall, as further described below.

Complaint Resolution Timeliness

To assess OCR’s timeliness of complaint resolution, we analyzed data maintained in OCR’s
CMS for cases opened in FY 2009 through FY 2013. We determined the number of complaints
received in each FY as well as overall and calculated the percentage of those complaints resolved
within 180 days in each FY as well as overall. We further analyzed the data to determine
timeliness by complaint resolution type. We calculated the percentage of cases resolved within
180 days and the median number of days for resolution by resolution type in each FY and
Final Audit Report
ED-OIG/A19N0002                                                                                     Page 20 of 22
overall. We also calculated the percentage of cases resolved by resolution type for each FY and
overall. 20

In addition, we analyzed OCR’s backlog of unresolved cases. We calculated the percentage of
complaints still unresolved from each FY. We also determined the total number of complaints
still unresolved as of September 30, 2013 that have been pending for more than 180 days,
regardless of FY received.

Complaint Resolution Efficiency

In order to assess the efficiency of OCR’s complaint resolution process, we reviewed resolution
policies and procedures, evaluated OCR’s complaint workload as calculated for the FYs noted
above in conjunction with applicable staffing data, and discussed the process with OCR
management and staff.

In order to determine reasons for untimely resolution and identify any potential systemic
efficiency issues, we selected a nonstatistical sample of 20 complaints. We identified a universe
of 1,090 complaints from OCR’s CMS that were opened between July 2008 and June 2013, were
unresolved for more than 1 year, and met either of the following criteria: 1) complaints that were
never in the ECR process at any time or 2) complaints that were in the ECR process for 6 or
more months. We decided to focus on ECR versus non-ECR cases because of the potential
impact the ECR process could have on resolution timeliness and efficiency if not monitored
properly. From the pool of non-ECR complaints, we randomly selected 10 cases from two
subgroups: 5 cases from the 699 which were open for longer than 1 year but less than 2 years and
5 cases from the 291 cases open for 2 or more years. From the pool of ECR complaints, we
randomly selected 10 cases from two subgroups: 5 cases from the 72 that were in ECR status
6-12 months and 5 cases from 28 that were in ECR status for more than 12 months.

We reviewed information contained in the DMS and CMS specific to each of our sampled
complaints and contacted OCR staff responsible for processing, investigating, and resolving the
selected complaints to discuss specific barriers to timely resolution.

Adherence to Policies and Procedures

To determine whether OCR resolves discrimination complaints in accordance with applicable
policies and procedures, we compared resolution activity for selected cases against applicable
resolution policies and procedures.

We selected a nonstatistical sample of 72 cases received between July 1, 2012 and
June 30, 2013. The universe of cases received during this time period was obtained from OCR’s
CMS and consisted of 9,161 complaints. We categorized the universe by office and for each of
the 12 offices divided cases into 6 groups first separating open cases that were older than
180 days and then by the 5 resolution types. We randomly selected 1 case from each of the


20
  If a complaint contains multiple allegations and is resolved using two or more resolution types, the “highest”
resolution type is used for coding in CMS.
Final Audit Report
ED-OIG/A19N0002                                                                     Page 21 of 22
72 categories for evaluation against CPM procedures. We evaluated compliance with CPM
procedures applicable to all cases as well as those specific to each resolution type. We reviewed
case file documentation maintained electronically and in hard copy and discussed cases with
applicable case teams and headquarters officials.

In order to assess compliance with OCR guidance and CPM procedures for handling of sexual
violence complaints or reviews at postsecondary institutions, we reviewed a nonstatistical sample
of 19 cases from a universe of 111 PSE Title IX sexual violence complaints or compliance
reviews which were either opened (87) or resolved (24) since October 1, 2013 in CMS. Of the
87 opened cases in the universe, 79 were complaints and 8 were compliance reviews. From the
79 opened complaints we selected 11 complaints, 10 selected randomly and 1 additional
complaint we judgmentally selected due to the complaint being opened at a school with a prior
open case. From the 8 opened compliance reviews, we judgmentally selected 3 reviews at
schools that also had open sexual violence cases. Of the 24 resolved cases in the universe,
23 were complaints and one was a compliance review. We selected all 5 cases (4 complaints and
1 compliance review) from the 24 resolved cases having resolution types of: Early Complaint
Resolution, No Violation or Insufficient Evidence, or Closure with Change.

For the randomly selected opened complaints, we determined if these cases were opened in
accordance with applicable procedures. For the judgmentally selected open cases at schools with
prior cases, we sought to obtain insight on how OCR approaches decisions on opening cases
when the same school already has an open sexual violence complaint or compliance review. For
the resolved cases, we selected cases with specific resolution types to assess compliance with
resolution procedures. We decided to review cases with these resolution types as these cases
would include findings and produce information necessary to more completely assess
compliance with resolution procedures. For all selected cases, we reviewed electronic and
hardcopy case files and discussed the cases with applicable case teams to determine whether
there were any concerns with the case approach and resolution.

Because there is no assurance that the three nonstatistical samples used in our audit were
representative of their respective universes, the results should not be projected over the
unsampled complaints or compliance reviews.

To achieve our audit objective, we relied, in part, on computer processed-data from CMS, OCR’s
case management information system. We used CMS data for the purposes of analyzing case
resolution timeliness for FY 2009 through 2013 and defining the universes for the sample
selections used in our audit, as described above. We verified the completeness and accuracy of
the data by comparing CMS records to information found in OCR’s DMS and hardcopy case
files. We also reconciled the public list of postsecondary institutions that had pending Title IX
sexual violence investigations as of August 13, 2014, with CMS records. Additionally, we tested
the completeness of the CMS data file provided to us by OCR by running several queries within
OCR’s active CMS database and reconciling the queries to data in the CMS data file provided
for our analysis. We considered the main file complete as a result of the reconciliation. Based
on our assessment, we concluded that the computer-processed data were sufficiently reliable for
the purposes of our audit.
Final Audit Report
ED-OIG/A19N0002                                                                     Page 22 of 22
We conducted fieldwork at Department offices in Washington, D.C., from January 2014 through
May 2015. We provided our audit results to OCR officials during an exit conference conducted
on May 21, 2015.

We conducted this performance audit in accordance with generally accepted government
auditing standards. Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions
based on our audit objective. We believe that the evidence obtained provides a reasonable basis
for our findings and conclusions based on our audit objective.



                           ADMINISTRATIVE MATTERS


Corrective actions proposed (resolution phase) and implemented (closure phase) by your office
will be monitored and tracked through the Department’s Audit Accountability and Resolution
Tracking System. Department policy requires that you develop a final corrective action plan
(CAP) for our review in the automated system within 30 days of the issuance of this report. The
CAP should set forth the specific action items, and targeted completion dates, necessary to
implement final corrective actions on the findings and recommendations contained in this final
audit report.

In accordance with the Inspector General Act of 1978, as amended, the OIG is required to report
to Congress twice a year on the audits that remain unresolved after 6 months from the date of
issuance.

In accordance with the Freedom of Information Act (5 U.S.C. § 552), reports issued by the OIG
are available to members of the press and general public to the extent information contained
therein is not subject to exemptions in the Act.

We appreciate the cooperation given us during this review. If you have any questions, please
call Michele Weaver-Dugan at (202) 245-6941.


                                            Sincerely,


                                            Patrick J. Howard /s/
                                            Assistant Inspector General for Audit
                                                                                      Attachment 1


                Overview of the Laws Enforced by OCR (from OCR website)

Sex Discrimination:

Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in
education programs and activities that receive federal financial assistance. Examples of the types
of discrimination that are covered under Title IX include sexual harassment; the failure to
provide equal opportunity in athletics; discrimination in a school’s science, technology,
engineering, and math courses and programs; and discrimination based on pregnancy. The Title
IX regulation is enforced by OCR and is in the code of federal regulations at 34 Code of Federal
Regulations (CFR) Part 106.

Race and National Origin Discrimination:

Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national
origin in programs or activities receiving federal financial assistance. Examples of
discrimination covered by Title VI include racial harassment, school segregation, and denial of
language services to national-origin-minority students who are limited in their English. The U.S.
Department of Education Title VI regulation is enforced by OCR and is in the Code of Federal
Regulations at 34 CFR 100.

Disability Discrimination:

OCR enforces two laws that prohibit discrimination based on disability. Section 504 of the
Rehabilitation Act of 1973 prohibits discrimination based on disability in programs or activities
receiving federal financial assistance. The U.S. Department of Education's Section 504
regulation is enforced by OCR and is in the federal code of regulations at 34 CFR 104. Title II
of the Americans with Disabilities Act of 1990 prohibits discrimination based on disability in
public entities. OCR is the agency designated by the U.S. Department of Justice to enforce the
regulation under Title II with respect to public educational entities and public libraries. The Title
II regulation is in the federal code of regulations at 28 CFR 35. Examples of the types of
discrimination prohibited include access to educational programs and facilities, denial of a free
appropriate public education for elementary and secondary students, and academic adjustments
in higher education.

Age Discrimination:

The Age Discrimination Act of 1975 prohibits discrimination based on age in programs or
activities that receive federal financial assistance. The Age Discrimination regulation is enforced
by OCR and is in the Code of Federal Regulations at 34 CFR Part 110.

Boy Scouts of America Equal Access Act:

On January 8, 2002, President George W. Bush signed the No Child Left Behind Act of 2001.
Part of No Child Left Behind is the Boy Scouts of America Equal Access Act, Section 9525 of
the Elementary and Secondary Education Act of 1965, as amended by Section 901 of the No
Child Left Behind Act of 2001 (the Boy Scouts Act), which applies to public elementary and
secondary schools, local educational agencies (LEAs), and State educational agencies (SEAs)
that receive Federal funds made available through the Department of Education. Under the Boy
Scouts Act, which became effective on January 8, 2002, no such public school, LEA or SEA that
provides an opportunity for one or more outside youth or community groups to meet on school
premises or in school facilities shall deny equal access or a fair opportunity to meet to, or
discriminate against, any group officially affiliated with the Boy Scouts of America, or any other
youth group listed in Title 36 of the United States Code as a patriotic society, that wishes to meet
at the school.
                                                                                                  Attachment 2


                          Case Processing Manual Requirements Reviewed

1. Was a case file established?

2. Was the complaint included in the case file?

3. Did OCR promptly acknowledge the complaint and provide the necessary information to the
complainant upon receipt of the complaint?

4. Was a signed consent form provided by the complainant and secured by OCR when disclosure
of the identity of the complainant was necessary?

5. Did OCR have subject matter jurisdiction of the case?

6. Were any special intake procedures applied in accordance with Section 601 for applicable
types of discrimination complaints? 21

7. Did OCR have personal jurisdiction of the case?

8. If the complaint was investigated, was the complaint filed within 180 days of the date of the
last act of alleged discrimination, or was a waiver granted or another allowing circumstance
recognized?

9. If the allegation was determined to be filed in an untimely manner, as described in the
requirement above, did OCR notify the complainant of the opportunity to request a waiver?

10. If the allegation was determined to be filed in an untimely manner and the complainant
requested a waiver, did OCR determined if a waiver should be granted?

11. If the case was investigated, did OCR issue letters of investigation notification to the
complainant and the recipient?

12. Did case planning take place?

13. Did the case file contain documentation that supports the decisions made with respect to each
of the applicable essential planning elements:
               (a)      Allegation(s)
               (b)      OCR’s jurisdiction over subject matter and parties
               (c)      Legal issue(s)
               (d)      Investigation strategy
               (e)      Resolution agreement


21
  These include (a) age discrimination complaints for employee complaints and service complaints; (b) Title VI
complaints against proprietary schools; (c) Title VI and Title IX employment complaints; (d) Title II Americans
with Disabilities Act complaints (other than Employment); (e) Section 504 and Title II disability employment
complaints for referral or deferral and for retention.
14. If there were interviews held applicable to the case, were interview records maintained in the
case file?

15. Did OCR obtain consent before interviewing a minor or legally incompetent individual for
the case?

Dismissal

16. Was the reason for the dismissal allowed by the CPM?

17. Did OCR wait at least 20 days after the date of the request for consent was sent to the
complainant before it dismissed the case due to lack of consent form provided by the
complainant?

18. Did OCR assist the complainant with understanding the necessary information to the
investigation before dismissal if it dismissed the case due to the complainant not providing the
information necessary to OCR’s investigation?

19. Did OCR wait at least 20 days after the date of the request for information necessary to the
investigation before it closed the case, if it dismissed the case due to insufficient detail provided
by the complainant, or an allegation too speculative, conclusory, or incoherent in nature that it is
not sufficiently grounded in fact for OCR to infer that discrimination or retaliation may have
occurred or is occurring?

20. Did OCR dismiss the case after appropriate approval?

21. Did OCR notify the complainant of the dismissal of the case?

Administrative Closure

22. Was the reason for the administrative closure allowed by the CPM?

23. Did OCR administratively close the case after appropriate approval?

24. Did OCR notify the complainant and recipient of the administrative closure of the case?

Early Complaint Resolution

25. Did Director or designee determine that ECR was appropriate?

26. Did OCR ensure that both parties agreed to participate in ECR?

27. Did OCR facilitate discussion between parties during ECR?

28. Did OCR monitor ECR proceedings to ensure timeliness?
29. Did OCR terminate ECR proceedings as soon as it was clear that the parties would not
succeed in resolving the complaint through the ECR process?

30. Did OCR ensure that the confidentiality agreement involving the ECR process was either
signed or acknowledged by the ECR facilitator and both parties?

31. Did OCR obtain a copy of the settlement agreement signed by the complainant?

32. If allegations were resolved through ECR, did OCR notify the parties in writing that the
allegation(s) has or have been resolved; and that other outstanding issues, if any, are to be
resolved through the investigation and resolution process.

33. Did OCR’s investigation resume after ECR was terminated to ensure a resolution as timely as
possible?

34. Were any notes taken during ECR by the facilitator and/or any records or other documents
offered by either party to the facilitator during ECR kept in a separate file and not shared with
other staff members?

No Violation/Insufficient Evidence, and Closure with Change

35. If the complaint was resolved during investigation, did OCR resolve the case after
appropriate approval?

36. If the complaint was approved for resolution during investigation, did OCR notify the
complainant of the recipient's interest in doing so?

37. If the complaint was investigated, did OCR make a determination at the conclusion of its
investigation and issue letters of findings and/or resolution agreements as applicable?

38. Did the letter of findings have appropriate approval before being disseminated to both
parties?

39. Did the letter of findings include all necessary information applicable to the case?

40. If a resolution agreement was necessary per OCR’s case resolution process, was a copy of the
resolution agreement included with the resolution letter or letter of findings disseminated to both
parties?

41. If a noncompliance determination was made, did OCR propose a resolution agreement and
perform negotiations with the recipient and maintain documentation as applicable?

42. Did the resolution agreement have appropriate approval?

43. Did the case file include an index of documents in the file and a key referencing by tab of the
evidence relied upon in making the determination.
                                                          Attachment 3


               Abbreviations, Acronyms, and Short Forms
                          Used in this Report

CAP          Corrective Action Plan
CFR          Code of Federal Regulations
CMS          Case Management System
CPM          Case Processing Manual
Department   U.S. Department of Education
DMS          Document Management System
ECR          Early Complaint Resolution
FMCS         Federal Mediation and Conciliation Service
FTE          Full-Time Equivalent
FY           Fiscal Year
GAO          Government Accountability Office
GPRA         Government Performance and Results Act
LEA          Local Educational Agency
OCR          Office for Civil Rights
OIG          Office of Inspector General
PSE          Postsecondary Education
RRP          Rapid Resolution Process
SEA          State Educational Agency
                                      OCR Response to Draft Report                                   Attachment 4


                            UNITED STATES DEPARTMENT OF EDUCATION
                                               OFFICE FOR CJVIL f{JGHTS
                                                                                        THE ASSISTANT SECf{ETARY


                                                 October 20, 2015



Mr. Patrick J. Howard
Assista nt Inspector General for Audit
U.S. Department of Education
Office of Inspector Genera l
400 Maryland Avenue, S.W.
Washington, DC 20202-1500


Dear Mr. Howard:

Thank you for the opportunity to comment on the Office of Inspector General's draft audit report, titled
The Resolution of Discrimination Complaints by the Department's Office for Civil Rights
(ED-OIG/ A19N0002). The Office for Civil Rights {OCR) appreciates the work and care that went into this
audit report and the cooperative manner in which OIG staff worked with OCR staff across the nation as
OIG studied "whether OCR resolves discrimination complaints in a timely and efficient manner and in
accorda nce with applicable policies and procedures."

OCR is pleased that the draft audit report concludes that OCR generally resolves discrimination
complaints in a timely and efficient manner, and in accordance with applicable policies and procedures.
We agree with each of your specific recommendations for sustaining improvements to our practices,
policies, and procedures. The grounds for our concurrence with each recommendation follow.

Recommendation 1.1

Your report recomme nds that OCR continue the practice of sharing and discussing with the regions the
list of cases pending review with headquarters (e.g., with the Enforcement Directors in OCR's Office of
the Assistant Secretary) to ensure they are tracked and processed efficiently. OCR concurs that this
practice, which was started in February 2013 and was established in its current form in April 2014,
should continue.

As your report finds, OCR's 12 regional offices are given the autonomy to conduct most of the
investigation and resolution activities for the cases t hey receive. Indeed, as your report notes, in March
2014, OCR implemented a change that allowed Regional Directors to pursue a resolution agreement
prior to t he completion of OCR' s investigation of complaints without the approval of an Enforcement
Director, unless the case involves a sensitive or high-profile area of discrimination.




                              400 MARYLAND AVE. S.W., WASHINGTON, DC 20202-1100
                                                      www.ed.gov

   The Department of Education's mission is to p romote student achievement and preparation for global competitiveness
                             by fostering educational excellence and em;uring equal access.
letter to P.J . Howard-Page 2


While fewer layers of review can result in a more expeditious resolution, developing a high-quality and
consistent product is just as important as timeliness to OCR. As your report finds, the Enforcement
Directors are involved in reviewing cases that involve some of the most complex or novel issues facing
OCR. In those situations, OCR agrees that it is critical for there to be clarity over which cases are with
headquarters, so that there is no confusion about who is responsible for moving the cases forward .

OCR initially made this information available to Regional Directors in February 2013 through the
dashboard accessible on their computer desktop, and began sending out this information, in an
additional format, through a weekly email to the Regional Directors in April 2014. These practices
should sustain, if not enhance, the trends that your report identifies: the rate at which OCR resolved
complaints within 180 days remains at a high level even with a significant increase in the number of
complaints received; the percentage of cases categorized as "Closure with Change" resolved within 180
days has increased over the last few fiscal years; and OCR does not have a large backlog of unresolved
cases.

Additionally, to further its dual interests in timeliness and quality, OCR has recently hired two additional
staff who perform the duties and responsibilit ies of Enforcement Directors, doubling OCR's capacity in
this area. In conjunction with the autonomy already possessed by the regions and the sharing and
discussing on a regular basis the list of cases pending in headquarters for review, doubling the number
of Enforcement Directors will further contribute to OCR resolving discrimination complaints in a t imely,
efficient, and effective manner.

Recommendation 2.1

Your report recommends that OCR continue the practice of internally reviewing cases each month, and
consider occasionally tailoring the monthly review to specifically review certain procedures, such as
complaint dismissals. OCR concurs that this practice, which OCR initiated in March 2014, should
continue.

As your report finds, OCR has clearly defined procedures, including the monthly internal case reviews by
the Enforcement Directors, that allow senior management to appraise office practices quickly and
effectively to ensure compliance with established policy and procedures. The recent addition of two
Enforcement Directors, noted above, will result in double the resources devoted to reviewing cases as
well as to day-to-day oversight of the progress and operating procedures of the regional offices.

As your report notes, there was no evidence in the cases you reviewed that OCR staff decided to dismiss
cases because of OCR's increasing workload (both in terms of the absolute number of complaints and
the complexity of the cases investigated) despite its decreasing resources (caused by flat-lined budgets
that have not allowed for OCR to replace the st aff lost to attrition). OCR' s monthly internal case reviews
already encompass complaint dismissals and would detect such problems. Indeed, as your report finds,
when a review identified issues related to complaint intake procedures in a region, training was
provided to staff in that region. OCR intends t o both continue and expand its internal case reviews, and
will certainly continue to occasionally tailor them to review certain procedures when appropriate .
Letter to P.J. Howard-Page 3


Recommendation 2.2

Your report recommends that OCR ensure that regions are made aware of and understand all policy
involving the maintenance of Early Complaint Resolution (ECR) specific files and the maintenance of ECR
records. OCR concurs that additional training about ECR-specific file and records protocols, which was
initiated in March 2015 in immediate response to OIG initially bringing the issue to OCR's attention,
should continue.

The ECR process seeks to facilitate resolution of complaints through a voluntary process akin to
mediation, with a trained OCR employee serving as mediator between the complainant and recipient.
This specialized process forms a small fraction of OCR's case work. To encourage candid discussion and
negotiation, the parties are told that statements made and records submitted during the ECR process
will be kept confidential. Section 203 of OCR's Case Processing Manual (CPM) and OCR's 2009
"Guidance for ECR Process in OCR Regions" requ ire that records of the ECR be kept separate from
investigative files and not shared with OCR staff members assigned to investigate the complaint. Your
report states, however, that staff reported that their office ECR practices differed from the CPM and the
2009 Guidance. For this reason, OCR concurs that the reported variance from the ECR requirements in
two regions warrants further attention.

As your report states, on learning from OIG staff about the variance with the ECR requirements in two
regions, OCR senior management immediately took action to begin addressing the issue. In the two
regions where the ECR problem was detected by OIG, the Regional Directors were required: to develop
training for all their staff to ensure that they have a clear understanding of the existing ECR
requirements; to submit a plan to headquarters detailing when such training was implemented and how
often such training will be conducted; and to submit an assurance that all their staff receive such
training. In addition, all12 regional offices were required to report on how they will monitor their
office's ECR practices to ensure they remain consistent with the CPM.

Apart from the ECR files, your report finds there were only "minor" issues with the CPM, which involved
"negligible" staff oversights. In particular, your report finds that with regard to cases involving sexual
violence at postsecondary institutions, £!1 of the cases reviewed were opened and/or resolved in
accordance with the CPM. OCR has received and is investigating a record number of complaints
involving sexual violence on college campuses. As your report notes, there are a variety of intertwined
reasons for this increase, such as: OCR's issuance of a "Dear Colleague Letter" about sexual violence in
2011 and a follow-up "Questions and Answers" document in 2014; concerted advocacy by students on
the topic, which includes encouraging students to file complaints with OCR; and greater public
awareness around the government's efforts to address the issue, as evidenced by the prom inent
inclusion of OCR's work in the White House Task Force to Protect Students from Sexual Assault
(established in January 2014) and its www.NotAione.gov website (established in April 2014). Because
these can be comparatively high-profile cases, it is important that the public can be confident that OCR
is providing a consistent framework for conducting these invest igations and resolving these complaints,
as you find OCR is doing.
letter to P.J. Howard-Page 4


Nonetheless, despite this finding and the finding that OCR generally acts in a manner that is consistent
with the CPM, OCR intends to continue training about consistency with the CPM, including ECR-specific
file requirements, as part of its on-going training of staff.

Recommendation 2.3

Your report recommends that OCR develop a mechanism to ensure consistency in the documentation of
case planning, such as having standard templates with required information. Your report finds that the
regional offices appear to be conducting the case planning required by Section 301 of OCR's CPM in
various formats. The CPM was written to allow regional offices flexibility in how they document their
case planning. Consistent with your recommendation, OCR will provide the regional offices with
guidance that will help ensure more consistent manners of documenting the case planning that is
already taking place.

Thank you again for the opportunity to comment on the draft audit report. OCR remains committed to
being a neutral factfinder that processes, investigates, and resolves complaints in an impartial manner,
consistent with the CPM and other established procedures, in order to ensure compliance with the civil
rights laws it is charged with enforcing. Please let us know if you have any questions or would like to
discuss our comments. We look forward to receiving the final report.

                                                    Sincerely,




                                                    Catherine E. lhamon
                                                    Assistant Secretary
                                                    Office for Civil Rights