Explainer Episode 47 – The Procedure of Title VI & IX Complaints
Title VI and IX apply to all colleges and universities that accept federal funds, which, as a condition of accepting those funds, agree they will enforce all Federal Civil Rights laws. However, sometimes programs offered by such institutions seem to run afoul of Title VI and IX, and when that happens, a recourse is to file a complaint with the Office of Civil Rights. In this explainer podcast, Dr. Mark Perry, who has filed Title VI and IX complaints against hundreds of colleges and universities across the U.S., joins us to discuss that process. He brings his expertise to give a window into the procedural aspects of this system, what they are, why such complaints may be valuable, and the considerations a potential complainant might want to consider.
For those who would like to learn more, independent of this podcast or RTP, Dr. Perry notes he can be reached at [email protected], or via direct message on Twitter at https://twitter.com/Mark_J_Perry.
Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.
[Music and Narration]
Introduction: Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.
Chayila Kleist: Hello, and welcome to the Regulatory Transparency Project’s podcast. My name is Chayila Kleist, and I’m Assistant Director of the Regulatory Transparency Project. Today, we are delighted to host Dr. Mark Perry for a discussion on the process of filing Title VI and Title IX complaints, what that process is, and why it’s important.
As always, please note that all expressions of opinion are those of the expert on today’s program, as The Federalist Society takes no position on particular legal or public policy issues.
Dr. Perry, thank you so much for being with us today. We appreciate you taking the time.
Dr. Mark Perry: Yeah, sure, happy to be here.
Chayila Kleist: For our audience, Dr. Perry is Professor Emeritus of economics at the Flint campus of the University of Michigan, where he taught undergraduate and graduate courses in economics and finance. Dr. Perry has also held a joint appointment as a scholar at the American Enterprise Institute and is a senior emeritus fellow there. Additionally, Dr. Perry is a senior fellow at the Do No Harm Medicine. In addition to his scholarly research, Dr. Perry enjoys writing guest editorials for general audience on current economic issues and has been published in newspapers, including USA Today, The Wall Street Journal, Washington Post, and many, many others.
Finally, and perhaps most pertinent in today’s programming, he is immensely experienced at filing Title VI and Title IX complaints, having—as of January 9, 2023—filed complaints against more than 700 colleges and universities with the Department of Education’s Office for Civil Rights—or OCR. And based on those complaints, the OCR has, so far, opened 337 federal civil rights investigations, resolving 257 of those investigations, mostly in Dr. Perry’s favor.
Now, while there’s more to say, in the interest of time, I’ll cut my introduction there. Although, if you’d like to know more about Dr. Perry, please feel free to visit www.regproject.org and read his impressive full bio.
With that, however, we’ll turn to our discussion. While the meat of today’s program is intended to focus on the procedural aspects of the complaint filing system, I’d love to start with a little bit of background. Dr. Perry, what prompted you to start filing these kinds of complaints?
Dr. Mark Perry: Yeah. Well, I was an economics professor and blogger and hadn’t really done anything in the area of civil rights until about seven years ago, when, in 2016, I was living in Michigan, near Michigan State, and would hear, occasionally, that they had a women’s-only lounge. And then, when I checked around the country, I couldn’t find any other examples of that, and so, I figured this was some kind of outdated relic of a past era. And then, really — so it kind of caught my interest because I thought, well, first of all, that really has to be illegal to have this segregated space on campus that was restricted by gender. And I visited there, and it’s in their main student union building, where you walk in the main entrance. And then an entire wing of the first floor, right in the center of campus, was this space that was the women’s lounge and had been there for quite a long time.
And, I think, a lot of universities, years ago, would have a men’s lounge and women’s lounge, but then, over the years, maybe there were just some women’s lounges, and then those eventually got just converted into co-educational space or other uses. But then, somehow, Michigan State had kept this outdated gender apartheid—I call it—policy of this prime space on campus.
So I thought, well, first of all, it’s got to be illegal. It’s really kind of unethical and immoral to then say only half of the student body can be in this one area without accommodating the other half. So you would never have just bathrooms for one sex or gender and not the other. So I thought this is really kind of objectionable from a moral and philosophical and ethical standpoint.
And then I also thought that I had been studying trends in higher education and felt like it was really unnecessary to have to accommodate women with any kind of special preferences or special resources because women have actually been the majority of college students and college graduates for about 40 years, going back to the early 80s, when women started outnumbering men for not just college enrollment but then associate’s degrees, bachelor’s degrees, master’s degrees. So it’s really been men who have been the underrepresented minority sex in higher education for 40 years. So I thought that was also a reason that women didn’t need any special accommodations anymore.
And so, I didn’t know how to file civil rights complaints and had no experience or background but thought, “Let me see how I can file a complaint against this.” So I didn’t know about the OCR procedure at the time—and I, again, knew nothing about it—so I filed a complaint with the Michigan Department of Civil Rights and then was in discussions or negotiations with them. And they were trying to figure out if I needed legal standing—which is an issue—we could maybe talk more about that later—because in some civil rights complaints, you have to have somebody who’s suffered an individualized injury or says that they’ve been harmed in a certain way. But that’s usually more for a lawsuit when you’re suing for damages, and then you need a lawyer—but anyway.
So as I was going back and forth in some interviews with the Michigan Department of Civil Rights, I leaked my complaint to some media contacts. And then it got out in the news, and then it kind of snowballed and then hit the national news that there was this complaint filed against Michigan State. It was in the Washington Post, Inside Higher Ed, and then a lot of the local papers in Michigan. So it really kind of blew up as a media story, which helped my case.
And so, then, as a result of all that attention, Michigan State shut down the women’s lounge during the summer of 2016, and they couldn’t have just taken the sign down off the wall for the fall—when the students came back in the fall—and said, “Hey, this is now a space for everybody, not just for women.” So they had to go through this—I don’t know—theater or this pretense, or they had to shut it down for remodeling so that then when they opened it up in the fall—when students came back—they could say, “Well, this has now been reconfigured. There’s new rooms in here.” And maybe they added a men’s bathroom—I’m not quite sure. But then it opened up in the fall as a new space on campus in the student union that was open to everybody.
Well, then the women kind of went crazy and had sit-ins and protests and demonstrations and petitions. But, really, by that time, Michigan State couldn’t defend it anymore. It was definitely an illegal violation of Title IX and state civil rights laws and against the Michigan constitution, which was amended in 2006 to prohibit any kind of discrimination or special preferences in public universities in Michigan based on sex or race or color or national origin. So they couldn’t really backtrack, and Michigan State was in big trouble at that time for the Dr. Larry Nassar scandal for the abuse of all the gymnast women.
And so, then, finally, that got resolved, but I got a lot of hate mail and hate voicemails—got a lot of negative feedback and blowback on that one, although that hasn’t happened since then. But then that got me interested because I noticed that this was happening, not just at Michigan State but at my own university—University of Michigan, in Flint.
And then I got the annual email from the provost about the 11 faculty awards that were available, and they’re accepting, then — an announcement that they’re accepting nominations. And so, over the 11 awards, I could only apply — as a white male, I could only apply for 6, and I couldn’t apply for 5 other ones because 3 were for female faculty only, and 2 were for minority faculty only. So I felt that that was a violation of Title IX and Title VI and didn’t, again, know as much about the OCR process—Office for Civil Rights—so I filed an internal complaint in Ann Arbor with the Title IX office. And they pretty quickly agreed with me that those—the faculty awards—were discriminatory and illegal. And so, they made the Flint campus change those five faculty awards so that then they’re now open to everybody, regardless of sex, gender, race, color, and so on.
So again, I kind of had another victory there and then got a notice on campus that they were starting this new summer program for girls—a STEM program—a STEM camp called GEMS—Girls in Engineering, Math, and Science. And that’s typical. There’s hundreds of those programs around the country, and I’ve filed complaints against all of the ones that I’ve been able to find. But they were very proud to announce this new program. It was going to start the summer of 2017. They had fliers and application websites and everything. And it was only for girls in seventh, eighth, and ninth grade.
So again, I knew that that was illegal and a violation of Title IX. So I filed another internal complaint through the University of Michigan, and they, again, quickly agreed because the point is that Title IX is a very clear law. And these violations are very clear violations of a very clear law. So when it says, “No person, on the basis of sex, shall be discriminated against or excluded or be denied benefits,” and they’re doing that, it’s pretty then — a clear violation of a clear law.
So the University of Michigan agreed with me and made our campus—the Flint campus—change the eligibility requirements and have the camp open to all students, regardless of sex and gender. So then I realized, “Hey. This is a systemic problem. This is institutionalized throughout higher education in the United States, which is, in many ways, a corrupt enterprise, partly because of this—that they systematically discriminate on the basis of sex and race. And so, I realized that this was a very widespread problem.
And so, I kind of took it upon myself to have this one-man mission to challenge the double standard for the enforcement of Title IX and Title VI in higher education. And then, I turned my sights on the main campus of the University of Michigan and found about 25 violations there for mostly Title IX, at that time. So I was looking for female-only summer camps, female-only scholarships, female-only fellowships, female-only internships, female-only mentoring programs and was able to identify several dozen violations at the University of Michigan.
And then, by that time, I’d had some contacts and became a little bit more familiar with the process of filing a Title IX or Title VI complaint with the Office for Civil Rights. And so, that was my first official Title IX complaint filed with the Office for Civil Rights, in that case, at the Cleveland office, which has jurisdiction over Universities in Ohio and Michigan. And so, that complaint was investigated. It was evaluated. It was open for an investigation almost four years ago, and that’s still in the investigation process. So again, sometimes these complaints can take a long time to be evaluated and investigated and then resolved. That’s one, kind of an outlier, but that case has been going on now for over four years.
And then I realized this is happening all over the country, and so, then I started filing complaints against universities just by doing a search on their websites. And then that has led to this, kind of, now, full-time civil rights activism and these efforts to expose these violations. And so, at this point, I’m up to 760 complaints, or something, which, I think, could get me in the Guinness Book of World Records if they had a category for the most civil rights complaints ever filed by an individual in the history of U.S. Civil Rights.
And then, like you had mentioned, that those have then now resulted — so far, because it takes a while for the process sometimes — but more than 350 federal civil rights investigations of campuses and then more than, I think, 225 now, resolutions of those investigations, where the universities either somehow resolve the allegation—the violation—by either discontinuing the program or changing the eligibility requirements to open it up so it’s not restricted on the basis of sex, gender identity, or race, color, national origin. Or sometimes they can offer a comparable equivalent, boys-only summer camp program that would then offset a girls-only summer camp program for STEM or a male program that would offset a female-only program, just the way they do in sports where they try to balance it between men’s and women’s sports. Universities could also offer a female STEM camp for girls and then a male STEM camp for boys that would be equivalent, and they’d just do one week for each camp. So that’s kind of where we’re at now.
Chayila Kleist: Okay. Well, thank you for the background of how you got to where you are. And before we get to the ways these things can be resolved, let’s dive a little more into the process and start at the beginning. For someone who is looking at filing a Title VI or Title IX complaint, what would this process look like? If they’re looking to file a reasonable complaint, I assume there needs to be a violation or, at least, a perceived violation of either Title VI or Title IX. What constitutes a violation of either of those titles and, particularly, what kinds of school programs—and you’ve mentioned a couple of these, so no need to rehash fully—might be authored fairly regularly that are violations but wouldn’t immediately raise red flags to a lay observer?
Dr. Mark Perry: Right. Well, what we’re looking for, to file a complaint that will survive the evaluation process and go through the evaluation and then be investigated and then be resolved—is what I’ve been looking for—are programs that clearly have eligibility restrictions based on sex or race. So Title IX and Title VI both are based on the fundamental legal concept that you’re not supposed to treat individual students or faculty or staff differently on the basis of their sex or race. So students or faculty are not supposed to be given any special preferences, and they’re not supposed to be restricted in any way from applying.
So what I’m looking for were — for example, in the beginning, there were a lot of these female-only or girl-only summer STEM camp programs that clearly say this program is only for girls in middle school or girls in high school. And so, when they say that—when the eligibility is restricted based on sex—then that’s a clear violation of Title IX, or if it’s a female-only scholarship—there’s a lot of those. And so, if it says, “This scholarship is restricted to undergraduate female students or graduate female students,” that’s a Title IX violation in almost all cases, or if they say, “This is a scholarship, and it’s only for black students or it’s only for BIPOC students—Black, Indigenous, and People of Color.”
So once they state a specific eligibility requirement or restriction, then you can say, “Okay. They’ve said who’s eligible. These are then the students or faculty who are not eligible on the basis of sex, gender identity, race, or color.”
So, for example, the medical schools, now often have special scholarships, fellowships, clerkships, internships programs for what they consider to be underrepresented minorities in medicine, and they actually, specifically say, “This program is only open to students who are black, Hispanic, Native American, or Pacific Islander.” So then you can say, “Okay. Those are the groups that are eligible. These are the groups who are not eligible and who face, then, discrimination because they are being treated differently on the basis of race, color or national origin.” And that would include medical students who are white, medical students who are Asian—and that includes about 30 different sub-categories of different groups within what they consider to be Asian, including Koreans, Japanese, Chinese, Indians, Pakistanis, Bangladeshis, Philippinos, Vietnamese, Laotian, and so on—and then also Middle Eastern students who often get grouped in with white students. But then you’ve got all the Middle Eastern categories that would include students from Turkey, Iraq, Israel, and so on. And so, then you can say, “These are the students or faculty—if it’s a faculty program—who are included.” And then that program then clearly discriminates against these groups. So that’s what you’re looking for.
And universities are often perfectly fine with bragging about how they’re going to either help BIPOC students or black students or female students, and so, they often — you’re just using their own words by their restrictions on a program that’s not open to everybody. But once it’s open to only certain students or faculty, then you can say, “These are the students who are being favored, and these are the students who have the advantage of this program. But then all these other students are not eligible—or faculty.” And so, that’s what you’re looking for — is a clear statement of eligibility because then you’re able to say, “These students are eligible or faculty are eligible, these students or faculty are not eligible.”
Chayila Kleist: Got it. Question on this idea of programming and what might be a violation. Are there ways a school’s programming might not be in violation of either Title VI or Title IX even if they’re going to discriminate on the basis of race or sex—for example, a single-sex dorm at a religious college with segregation by gender? It might be based on a religious conviction. That’s discriminating based on sex, but could there be an exception based on the religious status of the school or something else?
Dr. Mark Perry: Yeah. There are a few exceptions to Title IX. For example, it is legal to have a women’s college, and there still are dozens—if not more than dozens—of women’s colleges, where they could say, “We’re only going to accept female students.” And then, in terms of living space—dormitories—that would be perfectly legal to say, “We’re going to have separate female dorms and separate male dorms.” So that would be okay.
Where it gets a little cloudy or fuzzy is when a — if a university is challenged for, let’s say, a women’s achievement award and then — where it’s clearly only for women. But then when they get challenged, they’ll try to tweak it and make it so that it’ll be a program for women and their allies or a female program that’s a female leadership program, and then they’ll change it to, “This is open to female students — female applicants and their allies.”
So then a man—a male who’s supposed to be — then considers himself an ally of the women—then could potentially be in this women’s leadership program. Or if it’s women’s achievement or women and their ally’s achievement, then a male could potentially get the award if he had demonstrated some kind of advancing — some kind of efforts to advance women’s issues or something like that. So sometimes, if they can just make it seem like it’s open enough—even though, if they intend to continue to give it to just women only—then, at least, then they can pass the scrutiny of the Office for Civil Rights and then have that resolution be that they’ll, at least, pretend that it’s going to be open.
Or sometimes they’ll say — like the George Floyd Memorial Scholarship that’s for black students only. This happened at the University of Michigan, and then they changed it to saying that black students would have a priority or a preference, so kind of leaving it open that a white student could apply for the George Floyd Scholarship, even though it seems kind of clear that that’s only ever going to be given to black students because of just the way the scholarship is — just the name of the scholarship.
So sometimes—yeah—that’s what can happen, which we call that—with the group that I work with—the dirty dismissal, where Office for Civil Rights often will have their thumbs on the scale in favor the universities and allowing them to continue to discriminate, if they just do it in kind of a disingenuous and sneaky way.
So there’s a lot of different cases where it’ll be a resolution, and there’ll be a change in the program, but then they’ll allow the university to just change the eligibility requirements slightly to at least pretend that either whites could apply to a black only scholarship—or black preferred scholarship—or that men could be in a women’s leadership program that really is designed and has been operating for women only.
Chayila Kleist: Got it. Okay. Okay. And that made sense. I appreciate the clarification of, “Hey. There are some programs that may discriminate, and there are exceptions built into Title VI and Title IX.” So as one is thinking about — this hypothetical person, as they’re thinking about, “Hey. Is this in violation? It may discriminate on the basis of race or sex. Does it fit with one of these exemptions?” All that established, once someone thinks they’ve identified a program that may be in violation of Title VI or Title IX, what’s their next step? You mentioned in your own story that you went to a couple of different offices. And I’m particularly thinking here about how do they file with the Office of Civil Rights?
Dr. Mark Perry: Yeah. Well, I mean, if it’s, let’s say, a student or a faculty who is aware of discrimination taking place on their campus—it violates Title IX or Title VI—I mean, one option is they can go and file an internal complaint with either the Title IX office or with the general counsel’s office—the university’s legal office. So they could file a complaint, but they might, of course, be afraid of some kind of retaliation. But students can file a complaint internally. If it’s a Title IX complaint, they can file it with the Title IX office, or they can also file it with the Office for General Counsel because that’s — the Office for General Counsel, it’s their job to make sure that the university is in legal compliance with all federal and state laws, and so, they’re worried about legal risk for the university. So you can go the internal route and do that.
But then the other route is to go to the Office for Civil Rights and file a complaint, like I’ve been doing, where — now, in a case like that, if it was a student or faculty, they might have what, in legal terms, is called, legal standing, where they might’ve really been harmed by the program because they weren’t eligible. So they might have legal standing. But with the Office for Civil Rights, it’s an administrative complaint, so it’s not a lawsuit. You don’t need a lawyer, and you can just file a complaint either as an affiliated individual—like a student or parent or faculty or staff—or I’m just really an unaffiliated, outside person just saying to the Office for Civil Rights, “This university accepts federal financial assistance. A condition of accepting federal financial assistance, which includes Pell Grants for students and federally insured student loans — a condition of receiving that federal financial assistance is the university is then legally obligated to actively enforce all federal civil rights laws, including Title IX and Title VI, and laws on discrimination based on disabilities and discrimination based on age.” But I’d focus on Title IX and Title VI.
So the university accepts the federal financial assistance. They have to regularly certify to the department of Education in writing, “Yes, that we’re accepting your assistance”—taxpayer assistance, ultimately—“and so, we agree that we’ll actively enforce Title IX and Title VI.” So then, what I’m saying to the Office for Civil Rights—that’s part of the Department of Education—“Okay. This university has been accepting federal financial assistance. They’ve agreed to enforce Title IX and Title VI, but here are some examples of the programs that I allege violate Title IX or Title VI.”
And then, sometimes it’s just one program, one scholarship, one other — maybe, one program. Sometimes, like in the case of MIT, I had, I think, 28 different programs that I alleged violated Title IX or Title VI. And so, it can be done by email, so it’s pretty simple. I mean, they do have a form you can fill out online, but I just usually do it more freestyle. Just send an email to the regional office. There’s 12 regions in the United States, so each state reports to a different regional office.
So you figure out which regional office to report to. File the complaint by email and say, “This university is out of compliance. They’re violating Title IX. Here’s the website. Here’s the name of the program.” And then I try to provide as much information as I can to make it a really — present solid evidence that — here’s the website, here’s the other links—that might be news reports about the program, if it’s a new program—and just provide as much information so that it makes the evaluation process pretty easy to do the work for the Office for Civil Rights because they’re not really going out and looking for violations. They’re just responding to allegations of violations through complaints like the ones that I’ve been filing.
So then I try to provide as much information, which is usually available on the website, where it’ll say, “This program — it’s the women in STEM science program. These are the dates.” Or if it’s a fellowship or some kind of grant, “This is when you have to apply.” If it’s a scholarship, there’ll be information. And so, it has to be a current program, or the discrimination has to have taken place within the last 180 days. So if it’s a program that took place a year ago but is not continuing, then that program would not meet the 180-day limit. So it should be a program that’s ongoing and continuing. And so, then it’s a matter of presenting as much evidence as possible, again, which is usually in the university’s own words, off of their websites. And then you present that to the Office for Civil Rights, and then they will then evaluate that complaint from there.
Chayila Kleist: Okay. So you give them the timeline, the factors and the data where you’ve chosen to get your evidence for this from—if someone was looking — where they might be able to say, “Hey. Here’s what’s happening. Here’s what the university themselves is saying this program is, and here’s why I think it’s violative of either Title VI or Title IX.”
Once a complaint is submitted, what happens next? Does the complainant have to remain involved? You’ve filed many of them yourself, and I know you’ve noted there’s some variety in how it’s handled, but what are the next steps?
Dr. Mark Perry: Yeah. So what happens is, is that if they’re doing their job right and acting efficiently—which they do a lot of the time—then within about a week or so, you’ll get a letter of acknowledgment back from the Office for Civil Rights, and they’ll say, “We received your complaint.” They assign a case number or a docket number, so that’s kind of important to get that docket number or case number because then it goes into their system as a specific complaint with a case number—and so, that’s important.
And then they usually will send a consent form where they want you to sign a consent form saying that if they need to reveal your personal identity or information in the process of the investigation, that you give them the right to do that. So you can’t really then remain anonymous. Although, most of the time, I don’t think they really need the complainant’s name and identity revealed during the course of the investigation. But usually, you have to sign this consent form, giving them the right to do that if they feel that that’ll help the investigation.
And then, from there, it goes into this evaluation process that could sometimes take a month. Sometimes it could take a couple years. And so, then you just have to patiently wait for notification. I mean, they usually say that — they’re supposed to take a 30-day process to evaluate your complaint and then either dismiss it if it doesn’t meet their requirements for their jurisdiction or it doesn’t meet the timeliness requirement. So they’re either supposed to dismiss it with reasons for dismissal or open it for an investigation. Those are the only, really, two options. Or sometimes they might ask for additional information.
So then, hopefully, within — usually, within six months or a year, hopefully, then they’ll say, “Okay. We’re going to open this case for an investigation.” And so, often, there’ll be a long period you don’t hear anything. Then you’ll get a letter by email from the Office for Civil Rights, hopefully, saying, “Your complaint is now open for investigation.” So that’s the first notice that you would get as a complainant. And then, at the same time that they’re opening an investigation, they send a notice of investigation, usually, to the president of the university or the chancellor—the highest ranking official—which is kind of showing how serious and important it is that if the university is violating federal civil rights law, it goes right to the president—the letter from OCR—saying, “You’re now under federal investigation. Here’s the next steps.”
So then I get a letter saying, “Okay. Your complaint has been opened for investigation.” And then usually, again — then I don’t usually have any involvement or role during the investigation. And then the investigation is usually the Office for Civil Rights negotiating or working with the university to get information from the university and some history on the program. And then they work with the university to figure out how is the university going to resolve their violation?
And then they have this—it’s called the rapid resolution—process available because most universities — it’s kind of like being audited by the IRS. If you’re an individual for a company, you’ve got the federal government looking over your business, and so, you often would have an interest in trying to resolve that complaint as quickly as possible to get the federal government investigation closed. So most universities—at least half or more—will have an interest in saying, “Okay. We got caught. We’re in violation. We’re going to work with the Office for Civil Rights. We’re going to make some changes, as soon as possible, to close the investigation—to resolve it.” And so, that, often, will happen.
But then, in some other cases — I think if the university is more resistant or being stubborn, then the process—like with University of Michigan—it can drag out for three or four years. And so, that can often happen as well. But most of the time, an investigation seems like they’ll get resolved — once the investigation is open, they’ll usually resolve it within a year. And that’ll either be some kind of — they call it a dismissal, but it’s usually some kind of adjustment to the university’s policy that corrects the violation, which—as I mentioned before—is they’ll open up a girl-only or female-only program and make it coed and open to everybody, or they’ll sometimes decide to terminate the program. If they just don’t want to make the changes necessary, they’ll just decide to terminate the program. If it’s a scholarship, they’ll often go to whoever provided the funding—for a female-only scholarship, for example—and ask the donors or the family of the donors to agree to open this to everybody.
And so, usually, that’s what happens. It can happen pretty quickly. When the university isn’t quite so cooperative, I guess, then—and the Office for Civil Rights goes through a complete and full investigation—at the end of some period, then it’s the Office for Civil Rights says, “Okay. Here’s how we’re going to resolve it.” And then it’s a little harsher for the university because then there’ll some kind of resolution agreement or a voluntary resolution agreement that often will have action steps, where the university then will be required by a certain date to decide if they’re going to continue the program, change the program, change the name of the program. They might have to have some reporting requirements for a period of two or three years to report back to the Office for Civil Rights how many students applied, what the sex or gender or race was, how many were accepted, to prove to the Office for Civil Rights that they are now not discriminating, and the program is now open to everybody, regardless of either sex or race.
So that’s also — maybe, about 10 or 20 percent of the investigations end with a written resolution agreement and action steps and reporting requirements. And that’s the most favorable outcome, from my standpoint, because then that really means the university now is under scrutiny for a period of at least a couple years. And then they usually, at the end of that period, then notify me that, “Okay. We’ve monitored this university for two or three years. They seem to have done everything they’re supposed to.” So now the investigation is really closed.
Chayila Kleist: Okay. Thank you for walking us through the process. I’ll ask a last question before we conclude. And this is a little less on the actual procedure of Title VI/Title IX complaints and more on the considerations that go into it from a personal perspective. Obviously, this is something you think is valuable. You spend a lot of time doing it and have worked in conjunction with the OCR on a lot of different universities. But what are some of the drawbacks and risks involved in filing complaints, as people are thinking through — as one might be thinking through what this process entails?
Dr. Mark Perry: Yeah. Well, that’s a good question. And most of the communication—the written communication—with the Office for Civil Rights—for example, if they open an investigation, part of the language in there is that the university — if it’s a university, or college or school district, they will say very specifically, “The university is not allowed to harass or intimidate or retaliate against you. And if they do, that would be an additional violation of Title IX or Title VI.” And they may put that same language in the letter that goes to the school being investigated.
So there is some legal protection from the Office for Civil Rights that the university, if you file a complaint—so you’re, kind of, like a whistleblower, and you have certain protections—that they are not allowed to retaliate against you in any way. And if they do, they can actually be in trouble. So that is some protection, although maybe some students or faculty would think that that’s not enough protection, or there could be some subtle ways that they could be retaliated against. But there is legal protection. That’s important for people to know that there is legal protection—when you file a complaint—against any retaliation or coercion or harassment from the university, that they’re not allowed to do that. And I think that they know that, or they should know that. So that would be the first protection that you would have.
Beyond that, if you — I’m sure if you’re a faculty member and you then become unpopular, there would be certain ways that either people could either just—I don’t know—snub you, personally, or not approve any — let’s say you’re going up for tenure or you’re going up for full professor or applying for some award or something. I suppose they could kind of subtly use that against you. But if there was any overt, explicit discrimination against you or retaliation, that would then be actionable, and you could file another complaint against that.
Chayila Kleist: Got it. Well, I appreciate — for as much as there’s been a conversation on the procedure and why you think it’s valuable also that the [inaudible 36:44] “Hey. Here is some considerations.” We’ll wrap it there, Dr. Perry. Thank you so much for being with us today and sharing your expertise and insight on this topic.
For our listeners, thank you for tuning in, and if you’d like to find more content like this, please feel free to check out www.regproject.org. Again, thank you so much, and may you have a great day.
Conclusion: On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.
This has been a FedSoc audio production.
Professor of Economics, University of Michigan-Flint and
Resident Scholar, American Enterprise Institute
The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].