The Department of Education’s Office for Civil Rights released its biennial report on Title IX enforcement for the last two years. True to the title, the report focuses on enforcement “highlights” — and there were many: the 2010 Dear Colleague Letter about athletics, which rescinded the 2005 Clarification that allowed compliance to be measured by an interest survey; the April 2011 DCL on sexual violence; the 2010 DCL on peer harassment; and a number of investigations and resolutions into inequalities in athletics, harassment, and other areas. The report also touted the newly-expanded Civil Rights Data Collection, which now surveys all school districts for information relevant to Title IX compliance in various areas. These are all positive steps in the ongoing effort to ensure that the promise of Title IX is fully realized, it is is nice to have them summarized together in one place.
One limitation of the report, however, is its purely retrospective and descriptive nature. Nowhere does the agency evaluate its enforcement over the past two years or analyze how to improve enforcement going forward. This seems like a missed opportunity in light of some major questions raised by the report. For example, how does OCR plan on defending and enforcing the 2011 DCL, which has been criticized by civil libertarians for endorsing the preponderance standard in campus grievance proceedings? What does OCR plan to do with the damning data revealed by the CRDC, such as that 35% of responding school districts have proportionality gaps >10 percentage points? And the biggest question of all, to me, which actually (sadly) relates to nothing in the report: What does the agency plans to do rein in the runaway train of single-sex education, and ensure that the single-sex programs that exist are actually in compliance with the Title IX regulations? OCR must surely be pondering these questions as well; it would have been nice to have a little transparent self-analysis about them to round out the description of its enforcement achievements for the last two years.