Department of Education won't take action on potential civil rights violations from cheating at El Paso Independent School District because they occurred prior to the last six months, two top department officials told U.S. Rep. Beto O'Rourke in a letter this week.
The officials said department regulations bar such investigations if the allegations are more than 180 days old, but another Department of Education official told the El Paso Times that the agency has much broader discretion that would allow an investigation if high-ranking officials so chose. The conflicting responses left O'Rourke frustrated and seeking additional answers.
Two assistant secretaries of education wrote a letter to O'Rourke this week in response to his request for an update on the federal agency's actions since an audit released this summer found widespread cheating between 2007 and 2010 in EPISD. In particular, O'Rourke had asked whether the agency was following up on an audit recommendation that the Department of Education's Office of Civil Rights investigate whether the cheating scheme violated the civil rights of EPISD students.
The audit found that the cheating scheme targeted students in EPISD's Priority Schools Division -- particularly Mexican immigrant students in high schools. Some were improperly retained in ninth-grade to keep them from taking the 10th-grade standardized test used for federal accountability measures; others were inexplicably vaulted from ninth to 11th grade for the same purpose, the audit found. Others were simply pushed out of school
Department of Education regulations prevent an investigation of civil rights violations in the EPISD cheating scheme because the allegations are too old, two assistant secretaries of education told O'Rourke in a letter Tuesday.
"(The Office for Civil Rights') regulations require that complaints be filed within 180 days of the alleged act of discrimination -- the underlying incidents at issue occurred in the 2007-08 and 2008-09 school years, with ramifications for graduation rates through the 2011-12 school year," said Deborah Delisle, the assistant secretary for the Office of Elementary and Secondary Education, and Catherine Lhamon, the assistant secretary of the Office for Civil Rights.
But the Department of Education regulations allow broad discretion in ordering civil rights investigations beyond the 180-day window, said Catherine Grant, the spokeswoman for the agency's Office of the Inspector General.
It was an audit by the inspector general, begun in December 2010 and finalized in June of this year, that recommended a follow-up investigation by the civil rights office.
The Times asked Grant if the auditors were aware of the 180-day provision and, if so, why they'd suggest further investigation of allegations they knew were several years old.
"Yes, we were aware of the 180-day complaint filing time frame," Grant said in an email to the Times.
"We made the recommendation because OCR has discretion to extend the 180-day complaint deadline," she said.
"Second, a complaint is only one of the bases on which they are authorized to conduct a review or investigation. OCR can conduct a review whenever they want; and can investigate based on any information that indicates a possible violation."
The media office at the Department of Education declined requests for comment on the letter sent by Delisle and Lhamon to O'Rourke.
O'Rourke has been pushing the Department of Education for months for explanations about actions it's taking toward EPISD and other El Paso County school districts where cheating was alleged. He was clearly exasperated with the latest developments, saying the speed of the department's response so far has been "incredibly frustrating."
"This doesn't seem to be a priority for them," he said. "I'm just expecting more out of the Department of Education. I want to be constructive. I don't want to just rail against them, I want to find a way that we can work to get this done."
After learning that Grant had told the Times that the department had broad discretion on civil rights investigation, O'Rourke sent another letter Friday night to Delisle and Lhamon, the two assistant secretaries.
"Could you clarify whether the (Office for Civil Rights) has declined to exercise this discretion in this case or whether you would consider future complaints from the time period covered in the audit? Additionally, given your broad authority ... to investigate outside of the complaint process, will you be using that authority to carry out recommendation 1.10 of the audit to determine whether students' civil rights were violated and what the appropriate remedy for those students should be?" he wrote.
Department of Education media officials couldn't be reached for comment after O'Rourke sent the letter Friday night.
"The single most urgent part of this whole scandal is trying to get justice for these kids who were denied an education," O'Rourke said in an interview with the Times.