“Some of this is about the community believing that we’re here and we’re in business and we’re prepared to do the work,” said Catherine E. Lhamon, the department’s secretary for civil rights. Some of the increase, she said, was due to guidance her agency has issued, reminding the public as well as schools and universities of various protections under federal law and how to report illegalities.
Complaints of discrimination to the department have soared from 6,364 in fiscal 2009 to a record of 9,989 in the most recent fiscal year. Lhamon expects another record to be set when the current fiscal year ends in September. It is a sign that “we have the trust of the national community bringing to us their deepest hurts and asking for resolution,” she said.
The agency does not open an investigation into every complaint; some are quickly dismissed because they fall outside of the jurisdiction of the office, Lhamon said. She could not say what percentage of cases are dismissed but noted that even when a complaint is discarded, it is still time consuming because an investigator must make a determination.
In its budget proposal for next year, the Department of Education is seeking $131 million for its Office for Civil Rights, an increase of $30.7 million, so it can hire an additional 200 lawyers and investigators. That would be in addition to its current staff of 554 employees.
Lhamon said that without the additional employees, the current staff will continue to strain under growing caseloads and it will take longer to resolve complaints. The backlog of cases that have been pending for longer than 180 days has doubled during the past five years from 315 to 630.
“I have a very real concern about our ability to do the work the way we want to do it, and the way students who rely on us want it done, if we cannot get the resources we need to handle the caseload,” Lhamon said.
She said there was no single category of grievance that accounted for the rise in complaints. But a breakdown of agency statistics show that the category of sex discrimination has grown from 391 in 2010 to 2,354 in 2014. Discrimination based on disabilities make up the largest category, or 39 percent.
Sex discrimination comprised 24 percent of total complaints. Lhamon said two individuals were responsible for filing more than 1,700 of those allegations of sex discrimination. She declined to identify them, citing confidentiality requirements.
Agency officials and outside observers point to a key action by the Obama administration that probably triggered the increase in sex discrimination complaints. In 2011, the Office for Civil Rights issued guidance to that said sexual harassment of students, including acts of sexual violence, is a form of sex discrimination prohibited by Title IX of the Education Amendments of 1972. Up until that point, Title IX was commonly understood to ensure equal opportunity for girls and women in athletics and other educational programs and activities.
The guidance was part of an effort to make colleges and universities take campus sexual assault more seriously, Lhamon said. And after it was issued, complaints under Title IX soared.
Critics say the federal guidance was confusing, and that’s one factor behind the rise in complaints.
“To a large extent, this crush of complaints is a problem of OCR’s own making,” said Robert Shibley, executive director of FIRE, a Philadelphia-based civil liberties group. “There’s been a huge amount of confusion among colleges and administrators about how to handle these things. And that’s led to a lot of investigations being opened. I’m not saying that universities were handling sex assault complaints properly before — I doubt that they were. But increasing OCR’s staff by 30 percent would be the wrong way to go.”
Sen. Lamar Alexander (R-Tenn.), chairman of the Health, Education, Labor and Pension committee and a former Education Secretary, has been critical in the past of Lhamon and suggested that she has overstepped her role.
“Senator Alexander has raised his concerns with Ms. Lhamon about her expansion of authority through the use of guidance to impose requirements on universities without proper notice and comment,” an aide to Alexander said. “He will evaluate the merits of the budget request with those concerns in mind.”