When postsecondary institutions are unwilling or unable to comply with the regulations imposed by the Office for Civil Rights, the OCR turns to its main disciplinary tool: the withholding of federal funds. Most postsecondary schools rely on some form of financial aid from the federal government for many of their programs; aid that can be withheld or terminated by the OCR if it sees fit.
It’s important for staff at your school to be educated on these funding provisions, and have the ability to minimize their impact, if not prevent them entirely. After all, fund termination means something has gone wrong on your campus, and recouping financial aid is second to ensuring the safety of your students and staff.
The Pinpoint Provision
Congress included a provision in Title VI legislature (referenced in Title IX materials) that limited the scope of fund termination the OCR can enact. This is known as the “pinpoint” provision. When the OCR decides to terminate funds at a particular school, they must limit those actions to the people and/or programs that were directly involved with the incident in question. For example, if a professor in the history department was convicted of Title IX discrimination, the OCR would only be able to withhold federal funds that were earmarked for the history program. This prevents fund termination from affecting departments that had no involvement in the matter, as unnecessary financial penalties would likely do more harm than good.
Unfortunately, “pinpointing” is not always so clear-cut. In Grove City College v. Bell, the OCR was planning on bringing action against said college for not signing an Assurance of Compliance with Title IX. What made the case difficult was the fact the college did not receive federal finances directly – instead, its students received federal grants for educational purposes, which they used to study at the college. After deciding the use of federal funds of any kind subjected the school’s financial aid program to Title IX coverage, the Supreme Court concluded these scholarships could indeed be terminated unless the college signed the Assurance of Compliance.
In this initial decision, only the financial aid program was subject to Title IX, and the OCR could not influence funds in any other programs. A few years later, the Civil Rights Restoration Act of 1987 declared the receipt of federal assistance in any program subjected the entire institution to Title IX policies.
Theory of “Infection”
Another example of pinpointing highlights the difficulties that can arise when the particular discriminatory environment is not clearly established. In one hypothetical scenario, a female student is sexually harassed in her dormitory room. Under the pinpoint provision, only those areas directly involved in the incident, such as the school’s housing program, would be subject to federal fund termination (as well as all non-earmarked funds received by the school). Yet, the OCR would likely argue this particular student’s college experience has been negatively affected on a far wider scale than the scope of her dorm room.
Classes shared with the perpetrator or even sightings around campus could be considered as examples of a “hostile environment,” thereby rendering fund termination for only the housing program insufficient. This is known as the “infection” theory, where Title IX violations in one area on campus spread out and “infect” other areas that weren’t involved in the initial incident but nonetheless constitute a hostile environment for affected students.
This may in fact be one of the motives behind the OCR’s recent tendency to declare campus-wide “hostile environments.” The termination of federal funds becomes a much more powerful disciplinary tool when it can be applied to the entire school, rather than one or two programs. If the OCR can prove the effects of discrimination at a particular institution are widespread, they can threaten serious financial penalties, ones more severe than a single affected program would incur.
Knowing the reach and limitations of the OCR’s financial discipline can prepare your staff for worst-case scenarios and the steps required in correcting them. Of course, fund termination can be avoided altogether with the right kind of pre-emptive effort in making your campus a safe and secure environment, which is our goal from the start.
Do you have something to add to the discussion? What are some other difficulties involved in “pinpointing”? Share in the comments below.
Source: NACUA January 2016 Workshop OCR Pushback.