Funding Federal Civil Rights Enforcement: 2000 and Beyond
Chapter 1
Office for Civil Rights, U.S. Department of Education
In 1979, Congress enacted the Department of Education Organization Act,[1] which established the U.S. Department of Education (DOEd) in the executive branch of the government, separating the former U.S. Department of Health, Education, and Welfare (HEW) into two agencies: DOEd and the U.S. Department of Health and Human Services. The act also transferred all education-related civil rights functions to DOEd.[2] DOEd's Office for Civil Rights (OCR) enforces antidiscrimination provisions relating to the dispensing of federal financial assistance under a variety of education programs and activities. OCR's primary responsibility is to ensure that recipients of federal financial assistance do not discriminate on the basis of race, color, national origin, sex, disability, or age.
ENFORCEMENT AUTHORITY
OCR's enforcement responsibilities are rooted in five statutes containing antidiscrimination provisions:
Title VI of the Civil Rights Act of 1964;[3]
Title IX of the Education Amendments of 1972;[4]
Section 504 of the Rehabilitation Act of 1973;[5]
the Age Discrimination Act of 1975;[6] and
Title II of the Americans with Disabilities Act of 1990.[7]
Under Title II of the Americans with Disabilities Act, DOEd is the designated agency for civil rights enforcement with respect to all programs, services, and activities relative to elementary and secondary education systems and institutions, institutions of higher education and vocational education, and libraries.[8] OCR also implements the civil rights provisions in several DOEd programs, including the Individuals with Disabilities Education Act,[9] the Carl D. Perkins Vocational Education Act,[10] and the Magnet Schools Assistance Program.[11]
OCR's enforcement authority covers all institutions receiving financial assistance from the Department of Education. These recipients include all state education and rehabilitation agencies and their subrecipients; education and rehabilitation agencies of the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States; virtually every school district and postsecondary institution; and thousands of proprietary schools, libraries, museums, and correctional facilities.
ENFORCEMENT PROCEDURES
The majority of OCR staff and resources are devoted to complaint investigations and compliance reviews. OCR's enforcement activities also include monitoring corrective action plans, enforcement litigation, policy development and dissemination, complainant appeals, reviewing higher education desegregation plans, and conducting technical assistance activities.[12] If OCR determines that a violation has occurred, an attempt is made to achieve voluntary compliance by the recipient. If OCR cannot obtain voluntary compliance, it proceeds in one of two ways: it initiates an administrative enforcement proceeding seeking to terminate federal financial assistance, or it refers the matter to the U.S. Department of Justice to seek injunctive relief in federal court.[13]
BUDGET ANALYSIS
In 1998, the Assistant Secretary for Civil Rights, Norma V. Cant , underscored the importance of funding to OCR when she stated, There is a direct relationship between the level of funding and [OCR s] ability to serve customers and resolve real civil rights problems. [14] Nonetheless, OCR's budget remained relatively stable between FY 1994 and FY 1997 (see table 1.1) before increasing in FY 1999. Unfortunately, between FY 1994 and FY 2000 the number of full-time-equivalent (FTE) positions in OCR decreased overall.
TABLE 1.1 |
||
Fiscal year |
President s request |
Congressional appropriation |
1994 |
$56,570,000 |
$56,570,000 |
1995 |
61,457,000 |
58,236,000 |
1996 |
62,784,000 |
55,277,000 |
1997 |
60,000,000 |
54,900,000 |
1998 |
61,500,000 |
61,500,000 |
1999 |
68,000,000 |
66,000,000 |
2000 |
73,262,000 |
71,200,000 |
2001 |
76,000,000 |
76,000,000 |
Source: Appropriations history from Executive Office of the President, Office of Management and Budget, Educational Branch; Executive Office of the President, Office of Management and Budget, fax, Dec. 21, 2000. |
Budgets
FY 1994 to FY 1998. Although President Clinton requested small increases in OCR's budget for FY 1995 and FY 1996 (compared with the FY 1994 request and appropriation), the budget requests for FY 1997 and FY 1998 were lower than the FY 1996 request in both actual and constant dollars (see tables 1.1 and 1.2). However, between FY 1994 and FY 1997 Congressional appropriations for OCR gradually decreased, from $56.6 million to $54.9 million (see table 1.1). The next year, Congress met the President's request of $61.5 million, which increased OCR's budget by 12 percent over its FY 1997 appropriation.
FY 1999 to FY 2001. For FY 1999, the President requested 10.6 percent more funding than what was appropriated for OCR in FY 1998. Although Congress did not grant the President's request, OCR's appropriation of $66 million for FY 1999 was 7.3 percent higher than that in FY 1998 (see table 1.1). In real terms, the appropriation represented a 5.4 percent increase between FY 1998 and FY 1999 (see table 1.2). In FY 2000, OCR received another increase from Congress, raising its budget to $71.2 million. However, in real spending power the FY 2000 increase was only 5.5 percent above the FY 1999 appropriation (see figure 1.1). Similarly, in real terms, the President's request for FY 2001 represents only a 4 percent increase over the previous year's appropriation.
Overall, between FY 1994 and FY 2000, despite the decline in appropriations between FY 1994 and FY 1997, OCR's budget has increased by $14.6 million a 25.9 percent increase. In real spending power, however, the budget has increased by only 12 percent. In the meantime, FTE staff levels have decreased as the workload has fluctuated throughout this period.
TABLE 1.2 |
||
Fiscal year |
President s request |
Congressional appropriation |
1994 |
$56.6 |
$56.6 |
1995 |
60.1 |
56.9 |
1996 |
60.0 |
52.8 |
1997 |
56.3 |
51.5 |
1998 |
57.1 |
57.1 |
1999 |
62.0 |
60.2 |
2000 |
65.3 |
63.5 |
2001 |
66.2 |
66.2 |
Note: Estimates based on table 1.1. |
FIGURE 1.1
DOEd/OCR Funding History (in constant 1994 dollars)
Note: Estimates based on table 1.1.
Staffing and Workload
OCR's work is labor intensive, and approximately 80 percent of its budget is applied toward staffing expenses.[15] As a result of the reductions in the spending power of appropriations from FY 1994 to FY 1997, OCR's FTE level decreased significantly (by 17 percent), from 821 to 681 (see table 1.3). Although staff levels at OCR have since risen, the FY 1999 FTE level of 737 represented a 10 percent reduction from FY 1994 (see figure 1.2).
TABLE 1.3 |
|
|
|
Fiscal year |
FTE*level* |
1994 |
821* |
1995 |
788* |
1996 |
745* |
1997 |
681* |
1998 |
685* |
1999 |
737* |
2000 |
707* |
*estimate Source: OCR/DOEd, Annual Report to Congress, FY 1999, p. 18. |
FIGURE 1.2
DOEd/OCR Staffing History
*estimated
Source: OCR/DOEd, Annual Report to Congress, FY 1999, p. 18.
Although staff levels have been decreasing overall since FY 1994, OCR's workload has increased (see table 1.4). The number of complaints received at OCR was relatively stable between FY 1994 and FY 1999; however, these numbers are dramatically higher than they were during the 1980s when OCR averaged approximately 2,500 complaints annually.[16] Over the past six years, OCR has received an average of 5,000 complaints annually, resulting in more than a 100 percent increase in the average number of complaints received compared with the 1980s.[17] As of August 2000, OCR had already received 5,394 complaints.[18]
In response to this staggering workload, OCR was forced to modify its complaint resolution process in FY 1993 to rely more heavily on mediation. OCR created case resolution teams made up of attorneys, investigators, and support staff as a means to resolve complaints more quickly. In order to accomplish this, the agency now works to resolve complaints through mediation before conducting an investigation.[19]
In 1996, the Commission noted that the decline in OCR's budget and staffing, combined with its increased workload, had strained OCR's ability to carry out its mission.[20] Despite the Commission's findings, OCR continued to receive inadequate funding after FY 1996. Thus, in real spending terms, the OCR budget remained below the already low FY 1994 appropriation. Correspondingly, as stated above, FTE levels dramatically dropped between FY 1994 and FY 1997 (see table 1.3 and figure 1.2).
TABLE 1.4 |
||
Year |
Complaints** received** |
Complaints closed |
1994 |
5,302** |
5,751 |
1995 |
4,981** |
5,559 |
1996 |
4,828** |
4,886 |
1997 |
5,296** |
4,981 |
1998 |
4,827** |
4,753 |
1999 |
6,628** |
5,369 |
2000 |
5,394** |
|
|
* |
|
*1614 of these complaints were filed by an individual complainant. **As of August 2000. Source: OCR/DOEd, Annual Report to Congress, FY 1999, p. 18. |
Compliance enforcement has suffered due to funding and staffing constraints. In FY 1994, OCR initiated 144 compliance reviews (see table 1.5). The following year, the number of reviews initiated fell by 33 percent. After increasing in FY 1996 and FY 1997, the number of compliance reviews initiated decreased again in FY 1998 and FY 1999 (see table 1.5). In FY 1999, OCR commenced only 76 reviews, a reduction of 47 percent from FY 1994. Further, the number of compliance reviews initiated by OCR in the 1980s was significantly and consistently higher than the number of compliance reviews initiated in the 1990s.[21] In 1996, the U.S. Commission on Civil Rights found that OCR simply does not have sufficient civil rights staff to execute other enforcement activities than complaint investigations. [22]
Reductions in compliance activity can undermine OCR's effectiveness. For example, in FY 1997, although OCR received 17 percent more Title IX complaints than it had in the previous year, it initiated only two compliance reviews that addressed discrimination based on sex. Yet, between FY 1986 and FY 1997, Title IX complaints increased 335 percent.[23] In its analysis of OCR, the Citizens Commission on Civil Rights pointed out that proactive measures are necessary in order to have an effect on serious and recurring civil rights violations such as discrimination based on gender. The report asserted that compliance reviews are necessary to make clear to educational institutions across the board that OCR takes [civil rights violations] seriously. [24]
TABLE 1.5 |
|
Fiscal year |
Compliance reviews initiated |
1994 |
144 |
1995 |
96 |
1996 |
146 |
1997 |
152 |
1998 |
102 |
1999 |
76 |
Source: OCR/DOEd, Annual Report to Congress, FY 1999, p. 18. |
Summary
As of August 2000, OCR was staffed with approximately 707 FTEs, a 4 percent reduction from FY 1999. The President's FY 2001 budget request asks for $76 million and an additional 17 FTEs. The FY 2001 request also includes increases in expenses for equipment.[25]
[1]
Pub. L. No. 96-88, 93 Stat. 668 (codified at 20 U.S.C. 3401 et seq.
(1994)).
[2]
20 U.S.C. 3413 (1994).
[3]
Pub. L. No. 88-352, 78 Stat 241, 252 (reprinted in 42 U.S.C.
2000d 2000d-7 (1994 & Supp. IV 1998)).
[4]
20 U.S.C. 1681 1688 (1994).
[5]
29 U.S.C. 794 (1994).
[6]
42 U.S.C. 6101 6107 (1994 & Supp. IV 1998).
[7]
42 U.S.C. 12131 12165 (1994).
[8]
28 C.F.R. 35.190(b)(2) (2000).
[9]
Pub. L. No. 94-142, 89 Stat. 773, amended by Pub. L. No. 101-476, 104
Stat. 1141 (1990) (codified at 20 U.S.C. 1400 et seq. (1994)).
[10]
Pub. L. No. 98-524, 98 Stat. 2435 (codified at 20 U.S.C. 2301 et
seq. (1994 & Supp. IV 1998)).
[11]
Pub. L. No. 103-382, 108 Stat. 3518 (codified at 20 U.S.C. 7201 (1994)).
[12]
See USCCR, Equal Educational Opportunity Project Series, vol. I, December 1996,
chap. 5.
[13] Ibid.
[14]
U.S. Congress, House Subcommittee on the Departments of Labor, Health and
Human Services, Education, and Related Agencies of the Committee on
Appropriations, Departments of Labor,
Health and Human Services, Education, and Related Agencies Appropriations
for 1999, Apr. 1, 1998, p. 648 (testimony of Norma V. Cant , Assistant
Secretary for Civil Rights) (hereafter cited as DOEd/OCR 1999 Appropriation
Hearing).
[15]
U.S. Department of Education, Office for Civil Rights, fax to USCCR, July
2000 (hereafter cited as DOEd/OCR July 2000 data sheet).
[16]
USCCR, 1995 Budget Report, p. 10.
[17]
Fifty-seven percent of the total complaints OCR received in FY 1999 were
filed under the ADA. U.S. Department of Education, Office for Civil Rights, Annual
Report to Congress, FY 1999, p. 7.
[18]
DOEd/OCR July 2000 data sheet.
[19]
U.S. Congress, House Subcommittee on Oversight and Investigations of the
Committee on Education and the Workforce, The
Review and Oversight of the Department of Education's Office for Civil
Rights Hearing, 106th Cong., 1st Sess., June 22, 1999, p. 22.
[20]
USCCR, Federal Title VI Enforcement to Ensure Nondiscrimination in
Federally Assisted Programs, June 1996, pp. 202, 211 (hereafter cited as
USCCR, 1996 Title VI Report).
[21]
The number of compliance reviews conducted between FY 1981 and FY 1989
ranged from 136 to 287 per year. USCCR, 1995 Budget Report, p. 10.
[22]
USCCR, 1996 Title VI Report, p. 202.
[23]
DOEd/OCR 1999 Appropriation Hearing, p. 682.
[24]
Citizens Commission on Civil Rights, The
Test of Our Progress: The Clinton Record on Civil Rights, 1999, p. 233.
[25] Executive Office of the President, Office of Management and Budget, Budget of the United States Government, Fiscal Year 2001, appendix, pp. 387 88.