More Complaints Than Findings

In an op-ed this month on rising racial tensions on campus, Education Secretary Arne Duncan noted that in his seven years in office, the department's Office for Civil Rights has received more than 1,000 complaints about racial harassment in higher education. He said this statistic was an indication that the current concerns about race on campus are "no small issue."

Duncan didn't note how small a proportion of those complaints have resulted in findings of discrimination. Most of the complaints, in fact, never result in a complete investigation by OCR, let alone a finding. That isn't necessarily a sign of weak complaints or of poor enforcement by OCR. A review of more information provided by the Education Department, however, may illustrate why students are turning to campus protests and not to Washington with their grievances.

The Data on Complaints

During the Obama administration, the Education Department has received 1,073 complaints about racial harassment in higher education. Generally, the number of complaints a year is up, compared to prior years. Since 2010, the smallest number of complaints in a fiscal year is 137 (in 2010). In the five years prior to the Obama administration, the number of complaints never exceeded 95 and was generally smaller than that (in the 50s). An increase in complaints does not necessarily mean that the situation on campus is worse, since a variety of factors (such as outreach to encourage complaints, or the government signaling interest in enforcement) can be a factor in the number of complaints.

Of the 1,073 complaints, 227 have been closed -- either by a resolution letter or by being dropped for lack of evidence. The department declined to provide a breakdown between those two very different outcomes. Another 34 complaints remain under investigation. But that means that more than three-quarters of the complaints filed in the last seven years have gone nowhere.

So where do those complaints go? A senior department official who spoke anonymously said there are many reasons why complaints don't get pursued. Among the more common reasons: the person who filed the complaint decides to withdraw it, the complaint involves something that took place in a context for which a college has no legal responsibility or the complainant has filed with another avenue (for example, suing in court).

The official said that a number of the complaints that come in do reflect some of the issues being raised in campus protests, namely the allegation that many fellow students and faculty members make comments that are insensitive at a minimum and that create a hostile environment for learning, or that there is active discrimination against minority students. Among the typical kinds of cases, the official said, "a security guard" whose questions to minority students make them feel they are seen as criminals simply on the basis of their race or ethnicity, or "faculty members speaking in disrespectful ways and not treating students of color the way white students are."

With regard to issues of free speech, the official said that OCR looks "very carefully" at comments that set off complaints, and is looking for more than just whether someone said something that offended someone else. The question is whether comments "rise to the level of a hostile environment."

"We practice in our enforcement work that free speech and academic values must be reconciled with the obligation not to operate a racially hostile environment," the official said.

The Education Department released 10 letters of finding made in the last two years, and a few included allegations that were based on comments of faculty members.

One involved allegations against an unnamed faculty member at Cuyamaca College, a community college in California. A student filed a complaint with the college president last year reporting that a faculty member engaged in a "comedy routine" in class, in which the professor made jokes and shared insults about black people. The original complaint didn't identify the course or the faculty member, but when another student complained, the college was able to identify the instructor and the subject (oceanography). Documents from the college indicate that the college decided to drop the instructor for reasons unrelated to the incident.

The OCR finding against the college was that its complaint procedure was ineffective in part because it didn't inform the student who filed the original complaint of the findings of the investigation -- and that the instructor wasn't returning.

The college, in a resolution agreement, agreed to fix its procedures so that complainants in the future would be informed of findings.

Other complaints also cite remarks by faculty members and fellow students. Some of the complaints about students include allegations of physical violence accompanied by racial slurs by individual students. Others are allegations involving groups.

Former students (all African-Americans) on the football team at Jamestown College (now the University of Jamestown), in North Dakota, complained to OCR about harassment by white students and staff members, and said that they were falsely accused of vandalizing a building and accused of being in a gang, and that they were expelled from the college without a disciplinary hearing.

OCR documents indicate that the college settled the complaints of the individual students before the civil rights office drew a conclusion on all of the charges. (An email to the president of the college, who signed the agreement with OCR, seeking details, was not returned.)

The resolution agreement between the college and OCR is largely about policies -- requiring the college to strengthen policies and train people on policies to prevent racial harassment and discrimination. (The only provision about the former students themselves requires that tuition bills to them be cleared so that they can obtain transcripts of their work.)

That is typical of many of the cases OCR handles -- the college agrees to "early" resolution, which ends the actual investigation if the college agrees to take various steps. Many of the steps involve clarifying antidiscrimination rules, and not necessarily the specific grievance that led to the complaint, for which evidence may or may not exist.

The Education Department official stressed that the department also does work beyond the investigation process. It recently convened college officials to discuss ways to promote a better campus environment for all students. The official said that such efforts are important, and that "we will continue aggressively to enforce" the law.