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August 23, 2017

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School sex complaints to federal agency rise — and languish

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Eric Gay / AP

Itza Ayala poses for a photo at a park in Houston on Wednesday, Feb. 15, 2017. When school administrators didn’t investigate her 15-year-old daughter’s alleged sexual assault by another student, she says, her family turned to the U.S. Education Department’s Office for Civil Rights. The office has struggled to keep up with an increase in complaints against school districts.

HOUSTON — Hector and Itza Ayala sat in a conference room at Houston's prestigious high school for the performing arts, clutching a document they hoped would force administrators to investigate their 15-year-old daughter's claim of a classroom sex assault.

It had been four months since the girl reported being attacked by another student. School district police had been notified, but administrators said they could do nothing else to protect her from the boy, who was still in school. Frustrated, Itza, a teacher in the district, scoured the internet for help.

A Google search led her to the website of the U.S. Education Department's Office for Civil Rights.

"As I read more and more," she said, "I thought, 'This is exactly what happened, this is exactly what they're not doing. Somebody can help me!'"

Three years earlier, the office had issued detailed guidance on what schools must do upon receiving reports of student sexual violence in K-12 schools. An elaboration on years of legal and regulatory precedents, the guidance specified that a police investigation did not absolve a school from conducting its own review of whether a student's right to an education free of sex discrimination had been violated.

That 2011 guidance triggered a conservative backlash but also a rise in the number of sexual violence complaints reaching OCR, as the office is commonly known. It did not, however, lead to widespread reforms.

Short-staffed, underfunded and under fire, the office became a victim of its own success as it struggled to investigate the increase in complaints and hold school districts accountable. An Associated Press analysis of OCR records found that only about one in 10 sexual violence complaints against elementary and secondary schools led to improvements. And nearly half of all such cases remain unresolved — the Ayalas' among them.

"The critique is that we've gone too fast. The reality is that we've gone too slow," said Catherine Lhamon, the former head of OCR. "I am painfully aware of the kids we didn't get to reach."

UNEXPECTED BLOWBACK

One month after Donald Trump was elected president, about 200 government employees, lobbyists and advocates gathered at the Education Department to reflect on the civil rights legacy of the Obama administration. The mood was a mixture of pride, nostalgia and apprehension.

Marian Wright Edelman, founder of the Children's Defense Fund, praised the department's Office for Civil Rights — responsible for enforcing a half-dozen civil rights education laws — as among the most effective in federal government. But she warned of "some real bad days ahead."

Many worry the Trump administration and, especially, its education secretary will not support the department's focus on combatting sex assault in schools .

"It is very likely that Title IX sexual assault requirements will be cut back very seriously and probably even eliminated," said John Banzhaf, a law professor at George Washington University.

Best known for ensuring gender equity in federally funded sports programs, Title IX became the government's tool for cracking down on sex assaults in schools. In 2009, OCR began tracking sexual violence as a distinct category of the sexual harassment it already was monitoring.

"We felt a sense of urgency because of the sheer tragedy of the complaints we were learning about," said former OCR head Russlynn Ali, noting a gang rape outside a high school homecoming dance in California in October 2009.

In consultation with the Justice Department, Ali and her staff attorneys spent 18 months talking to counselors at school districts and universities and researching the breadth of their authority to find ways to prevent and respond to school sex assaults.

The result was the 2011 guidance , which specified that elementary and secondary schools, colleges and universities must conduct their own investigations of student sexual violence and take "immediate action" to prevent it or address its effects.

The guidance said school administrators should train staff in Title IX and use a preponderance of evidence as the burden of proof in investigations rather than the beyond-reasonable-doubt standard applied in criminal cases.

In 2014, the White House created a task force on student sex assault and launched a website with prevention strategies and legal advice. OCR issued a new round of guidance, reiterating that all public and private elementary and secondary schools, school districts, colleges and universities receiving federal funds must comply with Title IX.

Schools under investigation were publicly identified, and reform agreements were posted online.

The backlash was fierce, especially in universities. Opponents charged that the education department was trampling the due process rights of the accused and subverting Congress by making new law. OCR said it was simply explaining how to apply existing law to school sexual violence cases.

"We hadn't exactly expected the flood of complaints, or the blowback," Ali said.

Education Secretary Betsy DeVos' private foundation is helping fund a lawsuit aimed at dismantling the department's sex assault guidance. During her January confirmation hearing, the billionaire Republican was asked whether she would support continued enforcement.

"It would be premature for me to do that today," she responded.

Education Department spokesman Jim Bradshaw said OCR officials were not yet ready to comment on the agency's future direction.

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INCREASING COMPLAINTS

Unlike the furor in Congress and on college campuses, the 2011 guidance received far less attention in the offices of elementary and secondary schools. Some schools, the AP found, weren't even aware of it.

But still, the department's public awareness campaign bore fruit, with the number of sexual violence complaints against those schools nearly doubling between 2012 and 2013, according to an AP analysis of OCR records. Between 2014 and late 2016, complaints increased roughly fourfold.

Anyone can file a complaint with OCR — victims, families or school personnel. The sharp increase in complaints taxed an already stretched operation and delayed justice for some of the very students the administration sought to help.

Nearly half of the 275 sexual violence complaints filed from October 2008 to mid-November 2016 — 132 — were unresolved, AP found. OCR doesn't specify in its data if attackers are fellow students, but the Government Accountability Office in 2014 cited OCR officials as saying they received "many more" complaints of student rather than adult attackers — a trend AP also found in records OCR agreed to release under a public information request.

Of the 143 complaints that were resolved, AP found, most were closed or dismissed with no investigation. In OCR terms, a "resolved" investigation is one with any kind of outcome, including complaints tossed for missing filing deadlines or insufficient detail.

Only 31 of the sexual violence complaints filed with OCR resulted in an agreement by a school district to make improvements like overhauling response protocols or paying for victims' therapy. And no district faced the most extreme sanctions possible: a federal funding loss or Justice Department referral.

In the final few years of the Obama administration, OCR prodded fewer school districts to make improvements and took longer to do so, the AP found. Only two improvement agreements with school districts were logged in the fiscal year ending September 2016 — down from 10 in 2013.

Lhamon, who stepped down in January as OCR's top official, noted that because of the increased volume of complaints and lengthy investigations required of sexual violence inquiries, "the time lag between opening an investigation and closing it can take longer than we would like."

The office, which handles tens of thousands of civil rights complaints, also noted that congressional funding had not kept pace with its caseload. In a report late last year, OCR said it had 563 full-time employees compared to 630 in 2006. Its 2017 budget is $107 million, only slightly up from $91 million in 2007, though OCR said its caseload increased 188 percent during that time period.

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LOSING FAITH

Tired of waiting or losing faith in both schools and the government, students who file sexual assault complaints sometimes turn to the courts, as the Ayalas did last year.

The couple's daughter, whom the AP is not identifying because it does not name sexual abuse victims, had been ecstatic to enroll in Houston's High School for the Performing and Visual Arts, which counts Beyonce among its alums. In 2013, she joined the visual arts program.

A few weeks before her sophomore year, she was on campus helping with student orientation. So was Sharif Stallworth, an incoming junior she had exchanged texts with over the summer.

"The texts began pretty innocently but the last few texts included some mature remarks on the part of both students," school counselor Travis Springfield said in a statement obtained by AP. The final text from Sharif was sexually graphic.

"Wow. LOL," the girl responded. The next day she wrote, "I don't think this is going to work. I don't want a person in my life right now."

On the morning of the Aug. 15, 2014, orientation, Stallworth asked the girl to help him find an amplifier for a school performance. Inside an empty music room, according to a police probable cause affidavit, he pushed her to the floor, pulled down her pants and, despite her protests, raped her with his finger. The assault lasted four to five minutes and was interrupted by a staffer and student entering the room, according to police and school records.

In the school counselor's office, the girl gave a statement and shared the text exchanges. At Texas Children's Hospital, she was diagnosed with "sexual abuse of child or adolescent, initial encounter," according to medical records the family shared with AP.

In the weeks that followed, she began to have seizures and was diagnosed with epilepsy. She regularly missed school, and her grades suffered.

The school rejected the family's requests for special accommodations or escorts during class changes, saying it could do nothing pending the police investigation. So the girl memorized Stallworth's class schedule and charted alternate routes to avoid bumping into him. But in February 2015, she did.

The "brief but powerful encounter" triggered a seizure, the family's lawsuit said. And later that day, as her father drove her home, the girl jumped from the car, fracturing her skull and shoulder, the family said.

She finally was allowed to transfer to another school and graduated last summer. Her parents declined AP's request to interview her, saying it would be too stressful, but did allow contact by email.

"People who have gone through the same thing should remember that even though we get hurt we can always come back," the girl wrote. But rather than a career in the arts, her goal now is to live "a simple life."

Stallworth, now 19, was indicted on a felony sexual assault charge and is awaiting trial. He graduated in 2015 and enrolled in college. His lawyer did not respond to repeated requests for an interview.

School officials also did not respond to requests for comment, and it is not clear if the school took any action or changed any policies. An assistant principal said in an initial incident report that school district police told her not to notify Texas Child Protective Services and that the school would "follow up" after police finished investigating.

OCR would not comment on its investigation of the school's handling of the incident, which began in March 2015, except to say it was ongoing.

The family wants damages and accountability.

Hector Ayala, an Army Iraq War veteran and offshore oil rig technician, says he has had to turn down jobs that would have taken him far from home. Itza quit her teaching job. They've spent untold hours in therapy.

"It's frustrating to see that the adults who were supposed to protect her and help us out didn't do anything," Itza said.

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