As a candidate for president, Senator Barack Obama promised to run the “most transparent administration in history.” Six years into his presidency, his administration’s transparency record gets mixed reviews. Recently, the administration decided to advance its transparency goals by releasing publicly the names of colleges and universities under investigation by the Department of Education for “possible violations of federal law over the handling of sexual violence and harassment complaints.” This is ostensibly part of an effort to address the persistent problem of sexual violence on college campuses and to disseminate information about resources available to alleged victims. However, identifying schools under investigation is patently unfair to those schools, contrary to the policies of other Department of Education offices and various federal law-enforcement agencies, and counterproductive to efforts to achieve voluntary resolutions of these complaints.
On May 1, the ED’s Office of Civil Rights (OCR) identified 55 schools under investigation for potential violations of Title IX, which prohibits discrimination on the basis of sex in education programs and activities (the list has since grown to 62). In the department’s press release, Assistant Secretary for Civil Rights Catherine E. Lhamon said, “We are making this list available in an effort to bring more transparency to our enforcement work and to foster better public awareness of civil rights. . . . We hope this increased transparency will spur community dialogue about this important issue.” This particular attempt at “transparency,” however, does very little to advance the important dialogue about sexual violence, while it stigmatizes schools on the basis of nothing more than the filing of a complaint by a student or even an outsider to the institution.
Under the standards used by OCR for evaluating a complaint, the decision to initiate an investigation of a school reflects merely the determination that (1) the Department of Education has legal authority to investigate the matter; (2) the complaint was presented to the department in a timely fashion; (3) the allegations are sufficiently clear and complete; and (4) if the allegations are true, the conduct complained of would constitute a violation of Title IX or another law that OCR enforces. Critically, the department’s decision to pursue an investigation of a complaint involves no evaluation of the merits of the complaint or of the credibility of the person who filed it. Accordingly, Ms. Lhamon stated in the May 1 press release that “I also want to make it clear that a college or university’s appearance on this list and being the subject of a Title IX investigation in no way indicates at this stage that the college or university is violating or has violated the law.”
Ms. Lhamon is correct, but if that is the case, why damage a school’s reputation by announcing the investigation in the first place? We have already seen in the weeks following the department’s initial disclosure of the schools under investigation that there is no presumption of innocence in the court of public opinion. Some alumni reportedly are withholding donations, and students at Harvard, for example — one of the schools on the list — protested at their graduation ceremony. The website Jezebel recently published an article stating, “That’s 60 schools where enough students and faculty members got enough support from their family, friends and peers to get the attention of their school administrations. That’s 60 schools where the administration still didn’t pay attention but the Department of Education’s Office of Civil Rights did.” Presumed guilty, although no qualitative assessment of the complaint has been made.
In addition to the stigma that inclusion on “the list” carries, schools are at a decided disadvantage in defending themselves when students publicize their filing of a complaint at a press conference with high-profile attorneys. There are, of course, two sides to every story, but schools are unable to respond to such complaints because of the Family Educational Rights and Privacy Act (FERPA), which prevents them from releasing information that could explain their handling of the matter. Thus, while a student can make his or her allegations in front of a bank of microphones, the school is unable to respond. When the ED puts its apparent imprimatur on the complaint by announcing that it will initiate an investigation, that only exacerbates this inequity and the harm to the school’s reputation.
OCR’s new policy of releasing names of schools that are merely under investigation for possible Title IX violations, and doing so in the name of transparency, is also curious because it is contrary to policies of other federal law-enforcement agencies, and even policies of other offices within the department. As a matter of policy, the Department of Justice generally does not confirm or deny the existence of an investigation until it makes a public filing about a case; nor does the Securities and Exchange Commission. Indeed, the ED’s own Office of the Inspector General will not confirm an ongoing investigation, and its Federal Student Aid office generally does not disclose an ongoing program review of a school’s compliance with the Clery Act, which mandates disclosure of campus security policies and campus crime statistics. These policies are driven in part by the recognition that the mere disclosure that an entity (or individual) is under investigation can cause that subject substantial harm before a determination of potential wrongdoing even has been made. Should not the same consideration apply to schools that are subjects of Title IX complaints?
Finally, the ED’s new policy is counterproductive to achieving a cooperative resolution of the matter, which is the typical outcome. When a school is publicly identified as being under investigation, with the adverse publicity surrounding allegations that may or may not be true, the department and the school are likely to assume an adversarial posture from the outset. Particularly when there are inflammatory allegations, which the department appears to validate by announcing an investigation, a school that believes it did not mishandle the particular situation has a legitimate interest in seeking public vindication, which could drag out or even torpedo productive negotiations toward a resolution. As a practical matter, therefore, if a school is not publicly identified at the outset, an investigation is likely to advance and resolve more smoothly, which works to the benefit of all concerned parties.
None of this is to suggest that the Department of Education and the schools it regulates should address matters of such importance behind closed doors. After some measure of due process has been afforded a school during the course of an investigation and resolution, the department ought to publish its findings and resolution agreements so that parents and students can consider such information in evaluating prospective schools and the public can assess the performance of the department in enforcing the law. But given the low threshold employed by OCR to initiate an investigation, the mere fact that an investigation has been opened does little to inform the consumer, and can cause considerable, unjustified harm to an institution that later may be found to have done nothing wrong.
The Department of Education ought to reconsider its policy of publicly identifying schools under investigation, and it should also interpret FERPA to allow schools to respond publicly when students choose to air their grievances at a press conference. Properly confined to the particular allegations a complainant makes, such latitude would enable schools to inform the public discussion that the complainant (and the department) initiated, while perhaps giving pause to those who might make inflammatory, unsubstantiated allegations about a school’s response to a complaint of sexual violence.
— Scott A. Coffina is a partner at Drinker Biddle & Reath and a member of the firm’s white-collar-defense and corporate-investigations practice. He was an associate counsel to President George W. Bush and, before that, an Assistant United States Attorney in Philadelphia. You can follow Scott on Twitter at @scottcoffina.