Review of the Department of Health, Education, and Welfare's Office for Civil Rights

Published by the Government Accountability Office on 1977-03-30.

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

                   COMPTROLLER     GENERAL     OF      THE      UNITED   STATES
                                 WASHINGTON.    D.C.         20548                  ’    -530-77

                                                                         MAR3 fiI 1977

                                                                                    I1111111  lllll
The Honorable        Birch Bayh
United States        Senate
Dear Senator       Bayh:
        Pursuant    to your letter    of December 18, lS75, and
subsequent      discussions    with your office,     we made a
limited     review of the Department       of Health,   Education,
and Welfare's       Office  for Civil   Rights   (OCR).
        In your letter,          you expressed       deep concern that
problems      in OCR's management and use of resources                      had
seriously       impaired     its effectiveness           in carrying      out
its Federal civil          rights     enforcement       responsibilities.
Similar     concerns have been expressed                by other members
of the Congress and by a substantial                    number of civil
rights    groups over the past several                 years who charge
that OCR has failed            to adequately        protect    the civil
rights    of racial      and ethnic        minority     groups,     women, and
handicapped       persons.        'Accordingly,      you requested         that
we review OCR's management of its civil                     rights      enforcement
responsibilities         with particular           emphasis on the way OCR
was using its resources.
          Our review was performed              at OCR's Washington,       D.C.
headquarters           and its Mew York and Philadelphia              regional
offices.          As requested,        we inquired      into OCR's appropria-
tions,       staffing,       complaint      processing     and compliance
review policies             and procedures,       resources     expended on
various       enforcement       activities,       and the results/accom-
plishments          achieved by OCR under each of the Federal
civil      rights      laws for which it has enforcement              respon-
sibility.           A general     across-the-board         absence of basic
management information,                however,     severely   hampered our
audit work in each of these areas and precluded                         a more
detailed        evaluation      of OCR's operations.            This and
other management problems observed during                       the course
of our limited            review are summarized below.

.       .


                    The Office     for Civil   Rights,     under the general direction
            of the Secretary,         is charged with directing,            coordinating,
            and enforcing       the Department's        nondiscrimination        responsibilities
            related     to Federal financial        assistance      programs pursuant          to
            title    VI of the Civil      Rights Act of 1964; titles             VII and IX
            of the Education Amendments of 1972; titles                   VII and VIII       of the
            Public Health Service Act; section               407 of the Drug Abuse and
            Treatment Act of 1972; section              321 of the Comprehensive            Alcohol
            Abuse and Alcoholism         Prevention,      Treatment,      and Rehabilitation
            Act of 1970, as amended; section              504 of the Rehabilitation              Act
            of 1973; and section         7(b) of Public Law 93-638.              OCR is also
            responsible      for enforcing      Executive     Order 11246 equal employment
            opportunity      requirements     for construction         contracts      involving
            Department     funds and for Federal contracts               involving      insurance;
            insurance     agents; medical,       legal,    and education        services;
            museums and art galleries;           nonprofit      organizations;        and certain
            State and local governments.
                   Prior  to 1967, the Department's               civil     rights      responsibil-
            ities    were scattered       among its various          program agencies except
            that actual enforcement          proceedings         were centralized            in the
            Department's     Office    of General Counsel.              This administrative
            structure,    however, proved unsatisfactory                  for a number of
            reasons.     For example, it created             coordination          problems by
            having the civil       rights    responsibilities           divided       among various
            program agencies and levels           within      the Department;             it involved
            complicated     funding arrangements           throughout         the Department,
            which made it difficult          to accurately          assess the total             amount
            of funds beinq used for civil            rights;        and it resulted            in pro-
            gram funds being used to finance               civil     rights      activities.
                   In 1967, at the behest of the House Appropriations             Com-
            mittee,   the Department      created   a centralized-office      for Civil
            Rights in the Office       of the Secretary       to correct the aforemen-
            tioned administrative       problems and to handle anticipated
            increases    in workload.      @CR was formed by a consolidation
            of the existing     enforcement      components and offices     in the
            Department's    various    program agencies.
                   OCR's headquarters  office     is presently     comprised
            of four major operating    divisions,      several    administra-
            tive and support offices,      and certain     attorneys    in the
            Office   of General Counsel who are funded by OCR and who



    are counted against OCR's authorized            staffing      ceiling.
    The four operating    divisions       are the Elementary        and
    Secondary Education      Division,      the Higher Education
    Division,   the Contract     Compliance Division,           and the
    Health and Social Services         Division.     OCR also has staff
    assigned in the Department's          ten regional      offices     which
    are organized   along similar       lines.
          During 1975, OCR's organizational                structure   was
    reviewed by a private    consulting   firm.              By June 1976, OCR
    had completed furnishing     its proposals             for reorganization
    to the Secretary.     However, no decision               had been made on
    this matter as of January 1977.
    Resources      and Workload
            In fiscal      year 1967, the Department's             budget for
    civil     rights    enforcement       totaled     $3,434,000    with 278
    authorized       staff    positions.        Since that time, its
    civil     rights    enforcement       responsibilities        have increased
    significantly         as additional        nondisc'rimination      require-
    ments have been enacted;                These added responsibilities
    account for at least part of the substantial                      increases
    in OCR's appropriations              and staffing       in recent years as
    shown in the table below.                Also shown in the table are
    the amounts of funds OCR returned                   to the U.S. Treasury
    and its staff         vacancies      as of the end of each fiscal           year.
                             Funding                                Staffing
    Fiscal      Appropriations       Returned      to
     year         (note a)            Treasury             Authorized          Vacancies
                                                                  401              22
                                                                  550              75
    1972         11,759,ooo              319,000                  596              81
    1973         15,828,OOO              884,000                  706             135
    1974       -18,576,OOO            3,599,ooo                   872             147
    1975         22,172,OOO           2,568,OOO                 - 847              66
    1976         25,113,OOO              599,000 lJ/              904             115
       Includes     authorized   transfers      from the Social Security
       Administration       but does not include a proposed supple-
       mental appropriation        for October 1976 pay increases.
       Covers a 15-month period,          including    the 3-month tran-
       sition    quarter.



    An OCR official    stated that the large amounts returned
    to the Treasury    for fiscal      years 1974 and 1975 were
    primarily   due to hiring      freezes   imposed by the White
    House and contract      freezes    imposed by the Congress.
           As discussed     in more detail        below, @CR does not
    have reliable     workload and production             statistics
    covering    its operations       over the past several years.
    Although    the available      information       is not current,
    complete,- or accurate,        it indicates        a substantial
    growth in OCR's complaint           workload     from year to year.
    Agency officials      readily     admit that OCR has not been
    able to keep up with its workload and accomplish
    many of its enforcement          activities,       primarily       because
    of a lack of staff        resources,       and increased        requirements
    imposed on OCR by the courts.
            In an attachment    to your December 18, 1975, letter
    and in subsequent discussions           with your office,        a series
    of questions     was posed for us to consider             in our review
    of the Office     for Civil     Rights.      The questions      relate
    primarily    to the nature and extent of OCR's complaint
    and compliance      review workload,       case processing
    timeframes,     and the number and type of resolutions
    and settlements      being achieved.         Much of the information
    requested    appears to be the type of data that would be
    essential    for effective      administration        and management
    of OCR's Federal civil        rights    responsibilities.        However,
    most of the requested       information        was not readily       avail-
    able in OCR.
            @CR did not know and could            not readily     ascertain
    for   fiscal.  years 1970-1976
           --how many complaints        had been received           by type
              (race,  sex, national      origin,    handicap,        etc.)
              and by authority   -(title      VI, title   IX,       section
              504, etc.);
           --how many of these complaints            were in each stage
              of the enforcement        process    (awaiting     investi-
              gation,    investigation      in process,      investigation
              completed,     letter    of findings    issued,      etc.);

'B-164031(1)         '

       --what was the average age of the complaints                    in
          each step of the enforcement process;
       --what proportion     of these          complaints   received        an
          "on-site"  review;
       --how many of these          complaints      had been closed
          and on what basis         (successful      settlement,    com-
          plaint withdrawn,         no jurisdiction,        not merito-
          rious, referred   to       another agency, etc.);
       --for    those cases referred   to the Equal Employment
           Opportunity    Commission, what was the final
           disposition    and how long it took to resolve
           the complaints;
       --how much staff          time   was spent    on the average
       --the    extent that the amount of staff             time varied
           by type of discrimination  complaint             and by
       --if        there   were any correlation   between the amount
              of staff     time  spent on each complaint     and the
              relative     success of the complaint    resolution
       --the    extent   that the amount of lapsed time varied
           for complaint     resolutions by type of discrimina-
           tion and by authority;
       --how many compliance      reviews  (broken down by
          type of discrimination)      had been initiated,       how
          many had reached each stage of the compliance
          review process,     and what was the final      disposi-
          tion of those which had been completed;
       --what portion     of OCR's funding        and staff    resources
          had been devoted -to its various          enforcement
          activities   (complaint     investigations,       compliance
          reviews,   equal educational       services    reviews,
          training,   data collection,       etc.);
       --the   extent        that the problem of discrimination
           in Federal        financial assistance programs has been


          reduced as a direct          result    of OCR's enforcement
          activities; and
       --how much of the discrimination                problem     still
        In short,      OCR does not have a comprehensive           and
reliable    management information            system which provides
top-level      officials     with the basic data needed for making
management decisions           and improving      the agency's effi-
ciency and effectiveness            in carrying      out its civil
rights    enforcement       responsibilities.          OCR has attempted
to compile some of the information                outlined   above through
physical     inventories       of case files      and through sampling
and projecting         workload   statistics;       however, these efforts
have not proven satisfactory.
       OCR has a computerized              civil    rights      case following
system which evolved from a departmental                       correspondence
tracking     system.       The computerized           system is designed
to monitor      the status of complaints               and compliance
reviews    in OCR's enforcement             process.        However, the
system does not contain             a comprehensive           record of OCR's
cases.     For example, the Health and Social Services
Division    has entered only those cases commenced since
1975.     CCR officials         stated that Health and Social
Services'     data prior        to 1975 would not be entered into
the case following          system because the Division                  lacked
the personnel        resources       to search the necessary               files
to compile and computerize               the data.         Although some
operating     divisions       plan to include pre-1975               cases
in the system, all of them have experienced                        difficulties
in getting      their    field     offices       to compile and submit
this data for inclusion              in the system.
       Once the case following             system becomes fully     opera-
tional     it will    still     fall   far short of providing      OCR
with the broad range of basic management information
outlined      above.      Instead,     it will   simply permit OCR
to monitor      the various        milestones    in the complaint
investigation        and compliance        review processes,    such
as when a complaint           was received,      when a complaint    was
assigned for investigation,               and when the investigation
was initiated.


        The Office        for Civil     Rights has not developed uniform
policy      guidelines       and compliance        standards        for office-wide
application         in carrying      out its civil          rights      enforcement
responsibilities.             Instead,      each of the four operating
divisions       has a separate         policy    unit within          its organiza-
tional      structure      which is responsible             for developing         policy
guidelines        and compliance        standards        for use by the head-
quarters       and field      nersonnel      assigned to that particular
division.         In addition,       OCR has an Office             of New Programs
which is responsible             for developing          regulations         and guide-
lines     for newly delegated           authority;         however, its only
project      to date has been the drafting                  of regulations         for
the implementation            of section      504 of-the          Rehabilitation
Act of 1973.            In some instances,         field      offices      independently
developed their           own policy      guidelines        and compliance         stand-
ards without          the knowledge of the headquarters                    operating

       This fragmentation        of the responsibility           for
development     of guidelines       and standards      has resulted
in the various      divisions      operating    as separate        entities
rather    than as members of the same organization.                     For
example, they duplicated           each other's     efforts      and failed
to share their      interpretations        of civil    rights      laws.and
information     which could serve as input into generic                     or
uniform OCR policy        guidelines      and compliance        standards
for assessing     the compliance        status of recipients            of
Federal financial        assistance.       As a result,       the guide-
lines and standards        have tended to be somewhat disjointed
and dissimilar.
       Additionally,       some civil      rights      proaram areas have
been neglected        in the development          of policy       guidelines
and compliance        standards.       Only the Higher Education
Divisionand        the Contract      Compliance Division            have
developed operating          manuals containing            policy   guidelines
and civil     rights     compliance     standards        for use by their
respective      headquarters       and field      office      personnel;
the Elementary        and Secondary Education              Division    and the
Health and Social Services             Division       have not developed
uniform divisional         guidelines.        One Bealth and Social
Services     Division     official     blamed a lack of staff


resources      for that Division's      failure    in this regard.
Accordingly,       there has been a lack of uniformity           in some
field   office     enforcement   actions.       In addition,   the
section     504 regulations    drafted      by the Office    of New
Programs have not been issued although               it has been over
3 years since enactment of the legislation.
         The proposed reorganization           of OCR, which was-
 submitted    to the Secretary         during fiscal      year 1976,
 provided    for the establishment           of a single organizational
 unit within     OCR which would be responsible              for developing
 office-wide     policy    guidelines,       operating    procedures,    and
 compliance     standards.      As previously        noted, however, no
 action    had been taken on the reorganization                as of
 January 1977.
         Several top-level        agency officials     told us that one
 of the main reasons for the Office               for Civil    Eights'
 limited      effectiveness      has been a lack of quality          staff--
 particularly         employees with adequate investigative             skills.
 Some officials         stated that investigations         often took too
 long and were not adeguate because the investigators                       did
 not have sufficient          legal training      and investigative-type
 work experience.           One official    said OCR needed a cadre
 of investigators          who could conceptualize       what it takes
  to develop a case and define           appropriate     legal hypotheses.
          In this regard,       most of OCR's professional         employees,
 including       its investigators,        are classified     under the
 Federal personnel          system as Equal Opportunity          Specialists,
 Job Series No. 160.            CCR officials     indicated    that the
 work experience          of these persons primarily        involved     the
 delivery      of program services         and their    academic training
 was generally         in the social     science area which, in these
 officials'        opinion,    did not meet OCR's needs.
        There is no evidence that OCR has ever made a
 detailed    analysis of its work tasks to determine        the
 job skills    and knowledge actually    required   to effectively
 carry out its civil     rights compliance     and enforcement

                                        -   8   -

responsibilities.             Without    such an    analysis,    OCR is not
in a position         to determine       to what    extent untimely     and
inadeouate        investigations        and other    enforcement
activities       may be attributed         to the    quality   of staff
hired under Job Series No.               160.
        The Office    for Civil      Rights does not have a uniform
system or criteria         for determining         staffing       needs and
allocating     staff    resources      among its various           organiza-
tional     components and enforcement             activities       on the
basis of workload         and productivity.            The operating
divisions     and regional      offices     have -used a variety           of
methods for determining           their    staffing        requirements,
including     attempts     to systematically           collect     time-cost
data, use of estimated          time-cost       data, and on-site
reviews of staff        operations.
       We found no evidence that staff             requirements       for
 the operating    divisions        and regional    offices     were based
 on the actual    size of their        respective      complaint    backlogs,
 a comprehensive     analysis       of their    complaint     and compliance
 review workloads      compared to productivity            levels,   and
 planned accomplishments.            This problem may be attributed,
 at least   in part,     to the absence of reliable            workload
 and productivity      statistics.
          In addition,     we noted instances           in which staff
 officially      assigned to authorized            positions      in one
 division      and/or regional       office    were informally          reassigned
 to other divisions         or regional       offices      for indefinite
 periods     of time     to work on crisis         situations,       newly
 initiated      compliance     projects,      or for other purposes.
 For example, because of a court order directing                        OCR to
 concentrate       its efforts     on resolving         complaints      in its
 backlog,      OCR   borrowed   staff     from    other    regions    and
 headquarters        to process-incoming          and current       work in          -
 the Dallas office,         which had the greatest             backlog
 problem,      so that the Dallas staff            could work on its
 complaint      backlog.

                                          -   9 -

       OCR officials       acknowledged     that in some cases
these informal,        "temporary"     assignments       have adversely
affected   the ability        of the regional       offices   supplying
such personnel       to (1) eliminate       their    own complaint
backlogs,    (2) carry out compliance            reviews,    and (3)
meet the statutory         requirements     for reviewing      and
approving    desegregration        plans under the Emergency
School Aid Act, as amended.
          Since its establishment            in late 1967, the Office
 for Civil       Rights has not systematically              coordinated
 its civil       rights     enforcement      and compliance      activities
 with the Department's              various   program agencies and
 activities,        except for portions          of the Emergency School
 Aid program.           Moreover,      with this one exception          there
 are no established            policies,     guidelines,     procedures,
 or reporting         systems for OCR staff          to follow     or use in
 order to monitor           the Department's        program activities,
 or lend technical            assistance     to program officials           to
 insure full        implementation         of the Department's        civil
 rights      responsibilities          under the various      Federal
 financial       assistance       programs it administers.
          As a result,   OCR is not always aware of program
 activities     and policy    decisions   that may impact on or
 otherwise     have implications      for civil   rights     compliance.
 Also, OCR does not systematically           coordinate      with the
 Department's      program officials     on affirmative        action
 matters     in the award of Federal financial           assistance.
        The one area in which systematic             coordination       has
 taken place is OCR's reviews of Emergency School Aid
 Act appl-ications     received     by the Office       of Education,
 which are specifically         required     by legislation.         Also,
 the Department's      Public Health Service has taken some
 steps to include      affirmative       action and civil       rights
 compliance     in its program activities,           and has volun-
 tarily   coordinated      some of the planning         of these efforts
 with OCR.

                                         - 10 -

            The Office    for Civil        Rights does not appear to
    have an effective         communication         or information           dissem-
    ination    system for keeping its field                  offices      informed
    in a timely      manner of headquarters              pronouncements            and
    actions    on field     issues.        OCR regional          office     officials
    told us they sometimes receive                 information          on OCR head-
    quarters    policies      and actions        via the news media or
    community sources prior             to the receipt           of official
    copies or notices         of new compliance            issues,       policy
    pronouncements,       or    actions     that     OCR   will      take   on matters
    of direct     relevance      to their      particular          regions.        Some
    regional    office    staff      stated that these incidents                   not
    only caused them personal              embarrassment,            but also
    tended to reduce the agency's                credibility           and effec-
    tiveness    with those with whom it deals,                     such as bene-
    ficiaries     under Federal financial               assistance        programs,
    Federal fund recipients,              adversaries,         and communities.
            The Office  for Civil   Rights has not made any
    provisions     for monitoring   the costs incurred        on nor the
    benefits    derived   from large prototype      projects     or
    unique compliance       reviews which it has undertaken           from
    time to time, such as the equal educational              services
    review conducted      in New York City,    even though OCR
    officials    view these efforts     as significant       in terms
    of costs and staffing.
           During its first         few years of existence,          OCR's
    primary    compliance      emphasis in the area of education
    was on the elimination            of --
                                         de jure segregation         in
    public   schools.       In more recent years, OCR has expanded
    its program beyond student assignment                  issues to include
    equal educational         services.        The equal educational
    services    review approach- was conceived               and developed
    to determine      whether there is discrimination               on the
    basis of race, color,           national     origin,     sex, or handicap
    in the delivery       of educational         services.       The New York
    City review,      which was to be a prototype               for subsequent
    equal educational         services      reviews    in Philadelphia,

                                               - 11 -
*       . .

              b   B-164031(1)

                  Chicago,  and Los Angeles, has been substantially
                  completed and work in the other cities   has begun on a
                  limited  basis.
                          However, OCR does not know the amount of costs
                  incurred        on the New York City review.              Since its
                  beginning        in fiscal    year 1972, a number of contracts
                  related       to the review have been awarded, expensive
                  equipment has been purchased,              office      space has been
                  leased in the World Trade Center,                 part-time      staff   has
                  been hired,        and practically      all of the permanent staff
                  in the Elementary          and Secondary Education            Branch in the
                  New York Region have worked extensively                    on the review;
                  yet, no provisions          have been made to track these expendi-
                  tures and accumulate           the costs of this prototype              effort.
                  In addition,         no provisions    have been-made to measure
                  the results        or benefits     expected to accrue from this
                  effort      to determine      whether the same results            could
                  have been achieved through other less-costly                       compliance

                         As requested   by your office,    officials    of the
                  Department    of Health,    Education,  and Welfare have not
                  been given an opportunity       to consider     and comment
                  formally    on the contents    of this report.

                                                           Comptroller  General
                                                           of the United States

                                                          - 12 -