prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 1.

Report 1: Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment committed by professors, teachers, coaches, and others at educational institutions  The statute prohibits discrimination "on the basis of sex" of any person in an educational program or activity receiving federal funding  Though Title IX makes no explicit reference to sexual abuse or harassment, the Supreme Court has held that a school district can violate the statute, and be held liable for damages, based on a deliberately indifferent response to a teacher's sexual abuse or harassment of a student  The Court has also held that a school board may be liable under Title IX for a deliberately indifferent response to student-on-student sexual harassment  Meanwhile, federal agencies that administratively enforce the statute, such as the Department of Education (ED), have also determined that educational institutions can be held responsible for instances of sexual harassment under Title IX in certain circumstances  Title IX is thus primarily enforced in two ways: (1) through private rights of action directly against schools by or on behalf of students subject to such harassment in certain circumstances; and (2) by federal agencies that provide funding to educational programs  With respect to the latter enforcement prong, like several other federal civil rights statutes, Title IX makes compliance with its antidiscrimination mandate a condition for receiving federal funding in any education program or activity  Title IX applies to federal-funded schools at all levels of education  For instance, all public school districts receive some federal financial assistance, as do most institutions of higher education through participation in federal student aid programs  Notably, when any part of a school district or institution of higher education receives federal funds, all of the recipient's operations are covered by Title IX  The text of Title IX does not expressly mention sexual abuse or harassment, while current regulations implementing the statute also do not explicitly address sexual harassment (although the regulations do require schools to designate at least one employee to function as a Title IX Coordinator)  In each of the last several presidential administrations, however, the Department of Education (ED) has issued guidance documents that instruct schools regarding their responsibilities under Title IX when addressing allegations of sexual harassment  In response, educational institutions have developed procedures and practices to investigate and respond to allegations of sexual harassment and assault  And ED recently issued another notice of proposed rulemaking, after having revoked some of its prior guidance to schools in 2017  As discussed in this report, if adopted, the regulations would significantly change educational institutions' responsibilities for responding to sexual harassment allegations  To place the proposed Title IX regulations in context, this report provides background on the legal landscape that informs the proposal  First, the report examines how federal courts have understood Title IX's requirements in the context of private rights of actions brought by students directly against educational institutions seeking damages for sexual abuse or harassment  The report continues by examining how federal agencies have enforced Title IX, with particular focus on ED's guidance documents that direct schools on how to respond to sexual harassment and assault allegations  The report then considers various constitutional challenges brought by students against public universities, which claim that some universities' responses to allegations of sexual harassment have violated the due process rights of the accused  With this backdrop set, the report examines ED's proposed regulations with an emphasis on how they would alter the responsibilities of schools in complying with Title IX  Title IX of the Education Amendments of 1972 states that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," subject to certain exemptions  In other words, recipients of federal funding, which administer an educational program or activity, are prohibited from discriminating on the basis of sex  The statute, however, does not expressly provide for a private right of action by which victims of sex discrimination may recover for a Title IX violation  Nor does the statute expressly prohibit sexual harassment, abuse, or molestation as forms of unlawful sex discrimination, or otherwise define unlawful sexual abuse or harassment  Title IX also does not delineate the circumstances in which a school or educational program may be liable for such conduct  Given the absence of statutory text "to shed light on Congress' intent," federal courts have played a primary, if not exclusive, role in establishing the remedial scheme by which victims of sexual harassment or abuse may seek relief under Title IX through a private right of action  The Supreme Court first interpreted Title IX to provide for a judicially implied private right of action against a federal-funded educational institution for sexual harassment, and later, an implied damages remedy in such actions  Since then, and in the absence of legislative amendments to Title IX on those issues, the Court has also created the legal standard for establishing liability under Title IX for sexual abuse or harassment committed by a teacher, and other students  The Court, and numerous federal courts of appeals, have described this judicially created liability standard—which draws upon the "deliberate indifference" standard as applied under 42 U S C  § 1983 —as a "high bar for plaintiffs to recover under Title IX " Critically, in a Title IX private right of action for damages, an educational institution (or other federally funded program or activity) is not strictly liable for a principal's or teacher's sexual harassment or abuse of a student  In other words, the fact that sexual harassment or abuse occurred and was committed by these individuals is not the basis for a funding recipient's liability under the Supreme Court's remedial scheme  Rather, Title IX liability turns on the recipient's response to its actual knowledge of that conduct  A recipient will be liable only when its response was so deficient as to amount to "deliberate indifference" to the alleged harassment or abuse  The private right of action currently available under Title IX is one of judicial implication—that is, the Court has interpreted the statute to imply such a right, in the absence of express statutory language providing for it  A private right of action provides a personal legal remedy for victims of sex discrimination in the form of specific relief or damages  In contrast, and as discussed in a later section, administrative enforcement of the statute makes its general focus the institutional policies and practices of the recipient educational institution  Two Supreme Court decisions, together, set out the requirements for establishing an educational funding recipient's liability under Title IX for damages for sexual abuse or harassment: Gebser v  Lago Vista Independent School District and Davis N ext Friend LaShonda D  v  Monroe County Board of Education   The Court's liability standard premises an institution's Title IX liability for sexual harassment or abuse based on the institution's "deliberate indifference" in responding to knowledge of that conduct  Thus—and critical to understanding a Title IX private right of action for damages—an educational institution (or other federally funded program or activity) is not strictly liable for a principal's or teacher's sexual harassment or abuse of a student  Indeed, the Supreme Court in Gebser expressly rejected such arguments urging it to apply agency principles to Title IX such that a school would be vicariously liable for such harassment  Instead, liability attaches only if a plaintiff establishes that the funding recipient's response to its "actual" knowledge of the discrimination was deliberately indifferent  Put another way, under the Court's remedial scheme, liability under Title IX is based on the funding recipient's " own failure to act" adequately in response to known misconduct, not the misconduct itself  Thus, an institution will not be liable absent a showing of deliberate indifference, regardless of whether the conduct committed by a principal or teacher could be characterized as egregious  In creating this standard in Gebser , the Court had attempted to "'infer how the [1972] Congress would have addressed the issue had the       action been included as an express provision in the' statute " That task, the Court observed, "inherently entail[ed] a degree of speculation " To inform its analysis, the Court relied significantly on the statute's administrative enforcement provision because, in its view, the provision "contain[ed] important clues" from which to infer legislative intent regarding Title IX liability  The Court observed that, pursuant to that provision, agencies that disburse federal funds may suspend or cut funds to a funding recipient for violating Title IX, but only after they "ha[ve] advised the appropriate person or persons of the failure to comply with the requirement and ha[ve] determined that compliance cannot be secured by voluntary means " Because the statute's administrative procedure "require[s] notice to the recipient and an opportunity to come into voluntary compliance," the Court reasoned that it too would similarly require "actual notice" to an "appropriate person" to establish liability for damages in a private right of action under Title IX  The Court also concluded that a recipient would be liable under Title IX only where a school official responds to that "actual" notice so deficiently that its response amounts to "deliberate indifference " In so holding, the Court again looked to Title IX's administrative enforcement scheme and observed that it "presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance " The Court found "a rough parallel in the standard of deliberate indifference," from case law arising under 42 U S C  § 1983 addressing claims "alleging that a municipality's actions in failing to prevent a deprivation of federal rights" caused a violation  The Court thus held that "[u]ntil Congress speaks directly on the subject       we will not hold a school district liable in damages under Title IX for a teacher's sexual harassment of a student absent actual notice and deliberate indifference" —a conclusion that elicited a strong dissent  Deliberate indifference is a "high standard," as described by the Supreme Court in Davis , and must "at a minimum, 'cause [students] to undergo' harassment or 'make them liable or vulnerable' to it " Notably, the "deliberate indifference" standard does not require funding recipients to "remedy" the harassment  Rather, under Davis , a recipient's response to harassment will amount to deliberate indifference only if it is " clearly unreasonable in light of the known circumstances " Because this standard is not "a mere 'reasonableness' standard," a plaintiff must show more than the unreasonableness of a funding recipient's response to sexual abuse or harassment  The plaintiff must show that the recipient was clearly unreasonable in its response  Accordingly, a funding recipient is not liable under Title IX if it responds to sexual abuse or harassment "in a manner that is not clearly unreasonable " In addition to the requisite showing of "deliberate indifference," the Court's standard also requires a plaintiff to establish other threshold showings to prevail in a Title IX suit for damages—both before reaching the question of "deliberate indifference" and after establishing "deliberate indifference" on the part of the school or entity  Before reaching the issue of whether a funding recipient acted with "deliberate indifference," Gebser requires that a plaintiff establish that "an appropriate person" at the funding recipient had "actual knowledge of discrimination " Failure to show either "actual" notice or that such notice was provided to "an appropriate person" of the funding recipient may constitute the sole basis for a court's dismissal of a Title IX claim seeking damages for sexual harassment or abuse  An "appropriate person," under Gebser , is "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf " As discussed later in this report, what constitutes "actual" notice, and who may constitute an "appropriate person," have caused substantive splits among the circuits  Even where "deliberate indifference" is established, the Supreme Court's liability standard further requires a plaintiff alleging student-to-student or peer harassment to make several additional showings: (1) that a funding recipient exercised "substantial control" over the harasser and the context in which the harassment occurred; (2) that the harassment itself was "severe, pervasive, and objectively offensive"; and (3) the denial of educational access resulting from the harassment  With respect to "substantial control," Davis limits a school's liability for damages to circumstances in which the funding recipient exercised "substantial control" over the harasser and in which the harassment took place in a context subject to the recipient's control  If "the harasser is under the school's disciplinary authority," a recipient of federal funding may be liable for its deliberate indifference to the harassment, as the Court in Davis particularly emphasized the recipient's authority to take "remedial action" against the harassment  As for "substantial control" over the environment, "the harassment must take place in a context subject to the school district's control " As to the nature of the sexual harassment itself, Davis requires that the plaintiff show that the conduct "is so severe, pervasive, and objectively offensive, and [] so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities " Whether the conduct rises to this level depends, as the Court stated in Davis , "on a constellation of surrounding circumstances, expectations, and relationships," "including, but not limited to, the ages of the harasser and the victim and the number of individuals involved " Finally, for harassment to have sufficiently affected the victim's education, the Court in Davis made two additional observations  On the one hand, the Court noted that evidence of a decline in the victim's grades—as was alleged there—"provides necessary evidence of a potential link between her education" and the alleged harassment  Yet, the Court also concluded that harassment is actionable under Title IX only when it is "serious enough to have the systemic effect of denying the victim equal access to an educational program or activity " Without defining what might constitute a "systemic effect," the Court offered one example of harassment that does not have such effect: "a single instance" of harassment, even when "sufficiently severe " The Supreme Court's Gebser and Davis decisions establish that a school or other educational program that receives federal funding will be liable under Title IX for damages for the sexual abuse or harassment of a student only if it acted with "deliberate indifference" in its response to known discrimination  Deliberate indifference, the Fifth Circuit has recently observed, "'is an extremely high standard to meet '" Applying this and other components of the Supreme Court's Title IX liability standard, lower federal courts have varied in their formulations of the evidence required to prove a Title IX claim  Some courts, for example, have interpreted Gebser and Davis to adopt a "hostile environment" analysis of Title IX claims alleging teacher-to-student harassment, in light of precedent analyzing harassment claims in the workplace context under Title VII of the Civil Rights Act  Meanwhile, other federal courts have focused their teacher-to-student analysis on whether a plaintiff has established the following elements: "actual" notice of discrimination; by an "appropriate person" authorized to take corrective measures; and "deliberate indifference" by the funding recipient in response to known discrimination  Where a Title IX claim alleges sexual harassment or assault committed by a student against another student , courts have additionally required the plaintiff to establish that: the harassment was "so severe, pervasive, and objectively offensive"; the "victim-students [were] effectively denied equal access to an institution's resources and opportunities"; and the recipient exercised "substantial control" over the harasser and the context in which the harassment occurred  As discussed in further detail below, federal courts of appeals vary—and at times directly conflict—regarding the evidence sufficient to satisfy these elements  Failure to satisfy any one of the elements may be the sole basis for dismissal of a Title IX claim  Under Gebser , a plaintiff must show that the funding recipient had "actual" notice of the discrimination; therefore, it is not enough to present evidence that a funding recipient reasonably s hould have known about the alleged sexual misconduct  Under the standard, then, what type of allegations reported to a school give rise to "actual" notice? Is it enough, for example, if a funding recipient has actual knowledge of a " substantial risk of abuse"? Does it require knowledge of specific allegations of harassment or abuse or—perhaps most narrowly—require knowledge of "severe, pervasive, and objectively offensive" conduct? Meanwhile, if a school is notified of a perpetrator's previous acts of sexual harassment or abuse, may that constitute actual notice of that individual's conduct as to others ? Federal courts differ on these questions of actual notice, with some courts further differentiating between evidence that establishes actual notice of a teacher's sexual abuse versus actual notice of sexual violence or harassment committed by a student  As reflected below, which standard a court applies to evaluate "actual notice" is determinative—the claim may either proceed to the next phase of the analysis or be foreclosed altogether  In Doe v  School Board of Broward County , the Eleventh Circuit addressed the question of whether complaints of two separate students about the same teacher were "sufficient in substance to alert [the principal] to the possibility" of that teacher's sexual assault of a third student  The court held in the affirmative, emphasizing the similarity between the two preceding reports, which alleged multiple occasions of the teacher's propositions for sex and dates, sexual touching, and sexual comments about their bodies  These reports, the court held, raised a triable issue that the principal had actual notice "of a pattern of harassment " And where the analysis of "actual notice" looks to knowledge of the risk of sexual abuse or harassment, the court further observed, "lesser harassment may [] provide actual notice of sexually violent conduct " In Bay n ard v  Malone , however, the Fourth Circuit held that the school principal had no "actual" notice that a sixth grade teacher was sexually abusing a student in his class, despite receiving multiple prior reports that he molested children  There, the evidence reflected that before the plaintiff started sixth grade at the school, the principal had met with one of this teacher's former students, who reported that he had been sexually molested by the teacher while in the sixth grade, warned that the teacher was a pedophile, and that the principal should watch for certain behaviors  In addition, another teacher at the school told the principal about allegations that this teacher sexually molested children  Separately, the school librarian reported to the principal that she had walked in on the teacher with the plaintiff sitting in his lap, with his arm around the student, and their faces very close together, and that when the teacher saw her, he jumped up and the plaintiff fell to the floor  In relaying the incident, the librarian told the principal the behavior had been "inappropriate " Though the court noted that the principal "certainly should have been aware of the potential for abuse," it held that there was "no evidence in the record to support a conclusion that [the principal] was in fact aware that a student was being abused " The court dismissed the Title IX claim on the basis that no appropriate person had actual notice of the abuse of the plaintiff student  As the above cases reflect, in the absence of a clear definition—either in the statute or from the Supreme Court—courts vary with respect to the nature, specificity, and frequency of allegations sufficient to constitute "actual" notice for the purpose of satisfying the first prong of the analysis for Title IX liability for sexual abuse or harassment  The Supreme Court's liability standard for Title IX not only requires actual notice, but also that this notice be made to "an appropriate person"—that is, "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf " Generally, federal appellate case law reflects that rather than treating an individual's title as dispositive, courts engage in fact-specific determinations that appear to focus principally on whether an individual had the ability to halt or address the misconduct or whether the individual occupied a position high enough within the hierarchy of the funding recipient to be fairly said to act in a representative capacity for the recipient  Because the Court's opinions in Gebser and Davis do not clearly delineate which individuals may constitute "appropriate person[s]," federal courts have reached varying—and at times conflicting—determinations  In the elementary or secondary school context, for example, courts vary as to which individuals— a principal, teacher, or guidance counselor —have the requisite "authority to address the alleged discrimination" and "institute" corrective action to constitute "an appropriate person " Some federal courts of appeals have held that a public school principal may—but not always—constitute "an appropriate person " In Warren ex rel   Good v  Reading School District , the Third Circuit held, in a Title IX case alleging sexual abuse by a fourth grade teacher, that the school principal was an "appropriate person" in light of her authority to investigate a teacher's misconduct, which in turn implied her authority to "initiate" corrective measures such as reporting her findings to the school board  The Fourth Circuit, however, reached the opposite conclusion in Baynard v  Malone , holding that the principal—despite being responsible for supervising and evaluating teachers—was not an "appropriate person " The court emphasized that the principal could not "be considered the functional equivalent of the school district" and lacked the authority to "hire, fire, transfer, or suspend teachers " Meanwhile, at least one federal court of appeals has held that a principal who engages directly in sexual abuse or harassment may not constitute an "appropriate person " In Salazar v  South San Antonio Independent School District , the Fifth Circuit interpreted Gebser to hold that where a school official sexually abuses a student, he or she cannot be considered an "appropriate person," even if he would otherwise constitute an "appropriate person " That case involved allegations that a vice principal, who later became principal, sexually abused a student from his third grade to seventh grade year  Though "uncontroverted testimony at trial" established that the school official had corrective authority to address sexual harassment during the time he molested the plaintiff, the Fifth Circuit reasoned that it was "highly unlikely" that he would take corrective measures or report his own behavior so as to provide actual notice to the funding recipient  The court further rejected the argument that the principal's abuse should be treated as an official action of the school district for Title IX liability purposes, given the Supreme Court's rejection of agency principles to Title IX  The Fifth Circuit concluded that the "goals and purpose" of Title IX "would not be accomplished or effectuated by permitting damage awards" in such circumstances  In the higher education context, federal courts of appeals have engaged in similarly fact-specific analyses to determine whether a university employee—for example, a college dean, university counsel, or athletics director —constitutes an "appropriate person" for the purposes of a Title IX private right of action  The analyses in these cases appear to emphasize evidence relating to the individual's ranking in the university hierarchy, responsibilities involving receiving allegations of harassment, and ability to correct or halt the misconduct  Yet, even when there arguably is such evidence, it may not be sufficient to render that individual an "appropriate person " In Ross v  University of Tulsa , for example, the Tenth Circuit held that campus security officers were not "appropriate person[s]" through whom the university could have actual notice of an on-campus sexual assault  The court rejected the contention that the officers' mandatory reporting of sexual assaults to university personnel rendered them "appropriate person[s]," instead likening mandatory reporting to a "clerical act" rather than taking corrective action  The court also rejected the argument that the officers' participation in investigations of campus violence rendered them "appropriate person[s]," as that contention, as presented, "would assume that anyone participating in the initiation of a corrective process" is an "appropriate person " Given the variability of courts' analyses as to who may constitute an "appropriate person," it is unlikely that a school's or university's Title IX Coordinator will categorically constitute an "appropriate person " Rather, as reflected in the above decisions, a court's determination—based on the legal standard set out in Gebser —will likely depend on the characteristics it finds indicative of an "appropriate person" and the evidence relating to the individual's responsibilities in that institution  As discussed earlier, after establishing "actual notice" of the discrimination to an "appropriate person," a plaintiff must additionally prove that the funding recipient acted with deliberate indifference in its response—that is, that the entity acted in a manner that was " clearly unreasonable in light of the known circumstances " Federal appellate courts interpret this standard to require more than a showing that the school or institution failed to respond or act reasonably, or was negligent  Nor is a school required to remedy the harassment to avoid liability in a private right of action based on "deliberate indifference " In these highly fact-intensive analyses, courts examine the nature of the allegations the funding recipient had knowledge of, and what actions the recipient took, if any, in response to that information to determine whether the response was so "clearly unreasonable" as to amount to "deliberate indifference" to the alleged sexual harassment or abuse  The clearest cases of "deliberate indifference" generally concern evidence that the recipient made no effort to respond at all to "actual" notice of sexual harassment or abuse  Evidence of such circumstances might include, for example, a funding recipient's failure to initiate an investigation into serious allegations, or take any disciplinary actions in light of repeated reports of sexual harassment  Where there is evidence that the funding recipient responded in some manner, however, federal case law reflects what appear to be divergent and variable analyses as to whether a response is so deficient as to amount to deliberate indifference  Federal appellate courts have commonly described the requisite showing for deliberate indifference as a "high" bar to meet  In Doe ex rel   Doe v  Dallas Independent School District , for example, the Fifth Circuit held that the school district's response did not amount to deliberate indifference, despite evidence that could arguably be described as reflecting a deficient response  In that case, the plaintiffs, a group of former students, alleged that the same third grade teacher had sexually abused numerous male students, over the course of four years  The plaintiffs presented evidence that in response to a report of sexual molestation, the principal told the parent that the alleged perpetrator was a "good teacher" and that he knew her son was lying; failed to report the allegation to Child Protective Services; did not monitor the teacher further or require him to attend any training; and never raised the issue of sexual abuse again with the teacher until he was ultimately arrested  In the court's view, this evidence failed to create a triable issue of deliberate indifference, as the principal had nonetheless interviewed the student, spoken with his mother, and warned the teacher that if the allegations were true, "he would be 'dealt with '" It could not say, the court concluded, that these actions "were an inadequate response" to the student's allegation  When faced with apparently similar evidence of a school's response to allegations of teacher sexual misconduct, the Eleventh Circuit held that, given "serious deficiencies," the district court had erred in holding that defendant's response, as a matter of law, was not deliberately indifferent  There, the principal had received sexual harassment complaints by two students about the same teacher  In its analysis, the court highlighted the response to the second complaint, because by that time, the principal had notice of a possible pattern  The principal, however, "effectively did nothing other than obtain a written statement" from the student and the teacher  In addition, though the principal, as he had with the first complaint, reported the second complaint to the school board's special investigative unit, he nonetheless failed to notify the unit that the allegation concerned "the same teacher who had been the subject of a formal investigation just months earlier " It could not be said, the court concluded, that "merely because school officials 'confronted [the teacher],' 'obtained statements' from the complaining students, and 'informed the [unit] of the sexual misconduct allegations' (while omitting material details)," that this response was reasonable  Rather, the "failure to institute any corrective measures aimed at ferreting out the possibility of [the teacher]'s sexual harassment of his students could constitute deliberate indifference " Meanwhile, some courts of appeals have analyzed allegations of deliberate indifference that, in their view, the Court's Gebser and Davis decisions did not directly address  In Simpson v  University of Colorado, Boulder , for example, the Tenth Circuit addressed allegations that a university had an "official policy of deliberate indifference" by failing to provide adequate training or guidance in light of an "obvious" need for such actions  There, the head coach and other staff of the university's football program selected current players to host high school recruits on campus, for the purpose of "'show[ing] the recruits a good time '" During one such football recruiting visit, the plaintiffs, who had agreed to meet with them, alleged that university football players and high school recruits sexually assaulted them  In analyzing the issue of deliberate indifference, the court highlighted evidence that the university coaching staff had prior and ongoing knowledge of sexual assaults occurring during football recruitment and by football players, including the rape of a female student by a university football player two months before the plaintiffs were assaulted  The university had also been previously advised by the local district attorney to implement changes and training to its football recruiting program in light of such sexual assaults  In addition, the head coach "continued to resist recruiting reforms " One player testified that he received little guidance on his responsibilities as a "player-host"; and a handbook provided by the school to the players, the court observed, did not "provide guidance to player-hosts on appropriate behavior by themselves and recruits " The court emphasized that the evidence would support findings that, before the plaintiffs had been assaulted, the head coach had both general and specific knowledge of sexual assaults occurring during recruiting visits, that there had been no change in the recruiting program to lessen the likelihood of such assaults, and that the university "nevertheless maintained an unsupervised player-host program " The evidence, the court held, created a triable issue of deliberate indifference  As with the other components of the Supreme Court's standard for a Title IX private right of action—"actual" notice to an "appropriate person"—federal case law reflects fact-intensive, variable determinations with respect to the evidence necessary to meet the "high" bar for showing deliberate indifference on the part of a funding recipient  In addition to the private rights of action discussed above, Title IX is also enforced by federal agencies that provide funding to educational programs  Title IX makes nondiscrimination based on sex a condition for receiving federal financial assistance in any education program or activity  In this administrative enforcement context, if a school is found to have violated Title IX, the ultimate sanction is termination or suspension of federal funds, rather than a legal judgment requiring payment of damages to a particular student  Agencies are authorized to issue regulations (subject to presidential approval) and orders to enforce the statute and are responsible for monitoring recipients' compliance with Title IX  While a number of federal agencies issue funds for educational programs, and thus are responsible for enforcing the statute with respect to recipients of financial assistance for educational programs, two agencies play particularly prominent roles in enforcing Title IX  Pursuant to the Education Amendments of 1974, the Secretary of Education (ED) is specifically directed to promulgate regulations concerning the prohibition of sex discrimination at education programs that receive federal assistance  Because ED is, among other things, "the primary administrator of federal financial assistance to education," the agency plays a lead role in enforcing Title IX against educational institutions  And according to an executive order, the Attorney General coordinates the implementation and enforcement of Title IX across the executive branch  Subject to the coordinating function of the Attorney General, the Department of Justice's Civil Rights Division and OCR collaborate in enforcing Title IX consistent with a memorandum of understanding reached between the agencies, which notes that OCR has primary responsibility for enforcing the statute directly against recipients of financial assistance from ED through complaint investigations and compliance reviews  Accordingly, ED has promulgated regulations implementing Title IX that apply to traditional educational institutions of all levels that receive federal assistance, including elementary and secondary schools, as well as institutions of higher education  Those regulations specifically bar educational institutions from excluding individuals or denying the benefits of any education program or activity on the basis of sex  ED regulations also require that recipients of federal financial assistance that operate education programs designate an employee (commonly referred to as the Title IX Coordinator) to coordinate efforts to comply with ED regulations regarding sex-based discrimination  Further, schools must establish grievance procedures that provide "prompt and equitable resolution" of complaints alleging prohibited actions  Pursuant to its role in enforcing Title IX, OCR may conduct periodic reviews of institutions, or directed investigations, to ensure that recipients of federal funds are complying with applicable requirements  OCR also receives complaints from individuals alleging violations of Title IX by educational institutions and investigates allegations  When violations of the statute are found through these means, the office can seek informal resolution through a resolution agreement  According to OCR, if negotiations do not reach a resolution agreement, it may then take more formal enforcement measures, including seeking to suspend or terminate an institution's funding  Notably, neither Title IX's text nor ED's current regulations directly address sexual harassment  In the administrative context, ED's OCR has issued a series of guidance documents that have interpreted Title IX to bar sexual harassment and define distinct responsibilities for educational institutions with regard to such allegations  These documents—while sometimes subject to change—generally reflect a different analysis for assessing a school's Title IX liability for harassment than the Supreme Court case law addressing private rights of action for damages for sexual abuse or harassment  In particular, ED has applied a constructive notice requirement that prompts a school's Title IX responsibility to respond, rather than "actual notice" to "an appropriate person" as required in the context of suits for damages  In addition, while the Supreme Court has explained that a school's response will result in liability only where "clearly unreasonable," ED has articulated baseline standards for how schools must respond to comply with Title IX  Finally, while the Supreme Court rejected holding schools responsible for sexual harassment under theories of vicarious liability, ED has held schools responsible for sexual harassment under Title IX where a teacher commits misconduct in the scope of their employment  In 1997, OCR released a guidance document stating that sexual harassment of students by school employees, other students, or third parties is a form of sex discrimination prohibited by Title IX  The guidance explained that two general types of conduct constituted sexual harassment: 1  Quid pro quo harassment: wherein a school employee "explicitly or implicitly conditions a student's participation in an education program or activity or bases an educational decision on the student's submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature"; or 2  Hostile environment harassment: wherein sexual harassing conduct by a school's employee, another student, or a third party "is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment " In the former case, the 1997 Guidance explained that a school would be liable for quid pro quo harassment by an employee in a position of authority whether or not it knew or should have known of the harassment  In the latter case, the 1997 Guidance explained that, in instances of hostile environment harassment by employees , a school would be liable for harassment if the employee acted with apparent authority or was aided in carrying out the harassment due to his or her position  With respect to sexual harassment by other students or third parties , a school would be liable for harassment if "(i) a hostile environment exists in the school's programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action " The Guidance explained that while Title IX does not render a school responsible for the actions of its students, it does make schools responsible for their "own discrimination in failing to remedy [harassment] once the school has notice " Following the release of OCR's 1997 Guidance, the Supreme Court shortly thereafter recognized a substantively different standard for establishing liability in a private suit for damages directly against a school  As discussed above, in 1998, in Gebser , the Supreme Court ruled that in cases of harassment committed by a teacher , a school district is liable only when it has actual knowledge of allegations by an "appropriate person," and so deficiently responds to those allegations that its response amounts to deliberate indifference to the discrimination  And the next year in Davis , the Court held that in addition to a showing of actual knowledge by an appropriate person, and deliberate indifference, a plaintiff suing for damages for sexual harassment committed by a student must show that the conduct was "so severe, pervasive, and objectively offensive" that it denied the victim equal access to educational opportunities or benefits  Crucially, the Court in Gebser distinguished between actions by a school that could result in Title IX liability for damages in a private right of action, and Title IX administrative requirements imposed by a federal agency in implementing and enforcing the statute  According to the Court, agencies possess authority to enforce requirements that effectuate Title IX's mandate, "even if those requirements do not purport to represent a definition of discrimination under the statute " In other words, agencies enforcing Title IX may administratively require recipients to comply with certain procedures and rescind funding for violations, even though breaches of such requirements might not subject a school to liability under a private suit for damages  Following these Supreme Court decisions regarding the standard for liability in Title IX damages suits alleging sexual harassment, ED issued a number of guidance documents generally reaffirming its basic position outlined in its 1997 Guidance, including with respect to notice, a school's responsibilities under Title IX to comply with the statute, and the application of vicarious liability in certain situations  In these documents, ED has indicated that the liability standard imposed by the Supreme Court for Title IX sexual harassment violations is distinct from the standards appropriate in the administrative enforcement context  In other words, a school's responsibilities in responding to sexual harassment allegations under Title IX have been treated differently in the context of a suit for damages than in the administrative enforcement context  In 2001, OCR issued a Revised Sexual Harassment Guidance document that—in light of the intervening Supreme Court decisions that set a more stringent standard for obtaining relief regarding private damages actions —reaffirmed the standards of the agency's 1997 Guidance as grounded in Title IX regulations and distinct from private damages litigation  The guidance explicitly applies to all educational institutions that receive federal funds, including universities  It outlines the compliance standards OCR uses for enforcing and investigating violations of Title IX  As a threshold matter, schools are responsible for adopting grievance procedures that provide prompt and equitable resolution of complaints of sexual harassment  Failure to do so will mean that a school is in violation of Title IX  Generally speaking, when sexual harassment has occurred, educational institutions must take "prompt and effective action calculated to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects " If the "school, upon notice of the harassment, responds by taking prompt and effective action to end the harassment and prevent its recurrence, the school has carried out its responsibility under the Title IX regulations " Though framed as guidance, the 1997 and 2001 documents were promulgated by ED after an opportunity for the public to comment on them  (This does not mean, however, that the documents are legislative rules that carry the force of law; guidance documents generally serve to inform the public about the agency's approach to enforcement of the laws and regulations it administers  ) The 2001 Guidance stated that "unwelcome conduct of a sexual nature" constitutes sexual harassment  It indicated, however, that it aimed to "move away from specific labels for types of sexual harassment " Instead, the 2001 Guidance explained that the crucial issue in each case "is whether the harassment rises to a level that it denies or limits a student's ability to participate in or benefit from the school's program based on sex " In that situation, "harassment has occurred that triggers a school's responsibilities under, or violates, Title IX or its regulations " That said, it went on to describe types of harassment that largely tracked the categories outlined in the 1997 Guidance: quid pro quo harassment and hostile environment harassment  In the former situation, wherein a teacher or employee conditions a benefit or educational decision on a student's submission to unwelcome sexual conduct, such harassment is automatically considered harassment that limits or denies a student's ability to participate in or benefit from the school's program and thus discriminates based on sex in violation of Title IX  Unlike so-called quid pro quo harassment, a case of hostile environment harassment requires a further investigation into whether the conduct is sufficiently serious to limit or deny a student's ability to benefit from or participate in a school's program because of sex  Because fellow students do not generally have positions of authority, student-on-student harassment generally is considered hostile environment harassment rather than quid pro quo harassment, although teachers and employees may also create a hostile environment  The 2001 Guidance explained that, in evaluating whether hostile environment harassment has occurred, OCR examines all circumstances relevant to the situation  This includes whether the conduct in question was welcome  The 2001 Guidance also explained that, in the context of harassment by a teacher or school employee, the extent of a school's responsibilities to address harassment depends on whether the harassment occurs within "the context of the employee's provision of aid, benefits, or services to students" (i e , in the context of their job responsibilities)  With respect to harassment by teachers or employees in the scope of their job responsibilities (or who reasonably appear to be acting in that capacity), assuming the harassment limits or denies a student's ability to benefit from or participate in a school program, a school is responsible for the discriminatory conduct and must stop the behavior, prevent its recurrence, and remedy the effects of harassment for the victim  In such situations, a school is responsible to do this "whether or not" it has notice of the behavior  Whether sexual harassment occurs within the scope of an employee's job responsibilities can depend on a variety of factors  In cases of quid pro quo harassment, the behavior clearly occurs in the scope of an employee's job responsibilities  For hostile environment harassment, OCR will evaluate a number of factors to determine whether the harassment occurred in the context of an employee's job responsibilities  The 2001 Guidance also indicates that sometimes harassment that does not occur within an employee's job responsibilities will be sufficiently serious to create a hostile environment  In these cases, once a school has notice of the behavior, it has a duty to stop the harassment and prevent its recurrence  Likewise, in the context of student-on-student harassment (or harassment by third parties) that creates a hostile environment, the school is responsible for eliminating the environment and preventing its recurrence  However, a school is in violation of Title IX if it has notice of the environment and fails to take "prompt and effective action" to correct the situation  In that case, the school is responsible for ending the harassment, preventing its recurrence, and remedying the effects of harassment for the student that "could reasonably have been prevented" if the school reacted appropriately  As noted above, in certain situations of harassment by a teacher or employee, schools are responsible for harassment even without notice  Otherwise, in cases of sexual harassment by employees, students, or third parties, the 2001 Guidance explains that recipients have notice of a sexually hostile environment if a responsible school employee "knew, or in the exercise of reasonable care, should have known," of the harassment  A responsible employee is "any employee who has the authority to take action to redress the harassment, who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees, or an individual who a student could reasonably believe has this authority or responsibility " Even if a student fails to inform the school or use the appropriate grievance procedures to complain of harassment, a school will be in violation of Title IX if it knows or reasonably should know of a hostile environment  A school is in violation of Title IX if it has notice of a hostile environment and fails to take immediate and effective corrective action  Once a school has notice of potential sexual harassment of students, the 2001 Guidance explained that "it should take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again " In cases of reports of harassment by a student, parent of an elementary or secondary student, or harassment observed by a responsible employee, regardless of whether the harassed student, or student's parents, decide to file a formal complaint, "the school must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation " For situations where a school learns of harassment via other means, a variety of factors will determine whether there are reasonable grounds for the school to investigate  If the allegations are confirmed, then a school has a responsibility to respond as described above  The 2001 Guidance also noted that informal mechanisms may sometimes be used to resolve complaints if the parties agree to do so  However, it made clear that certain informal procedures, such as mediation, are not appropriate in certain cases, such as alleged sexual assault  Finally, the Guidance noted that while "the rights established under Title IX must be interpreted consistent with any federal guaranteed due process rights," schools should nevertheless "ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant " In 2011, OCR issued a Dear Colleague Letter that supplemented its 2001 Guidance and focused on the obligations under Title IX for schools that focused exclusively on peer-to-peer harassment, rather than harassment by a teacher  The Letter explained that sexual harassment "is unwelcome conduct of a sexual nature," and includes "unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature " Sexual harassment also includes sexual violence, which refers to "physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol " Sexual harassment creates a hostile environment "if the conduct is sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the school's program " When a school "knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects " The Letter also noted that schools will sometimes have an obligation to respond to incidents of sexual harassment that occur "off school grounds, outside a school's education program or activity " And whether or not the conduct occurred, if a student files a complaint, "the school must process the complaint in accordance with its established procedures " Because students can experience the effects of off-campus sexual harassment at school, "schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus " With respect to investigations of sexual harassment allegations, the Letter stated that the standards for liability in the criminal context are distinct from Title IX, and therefore a criminal investigation into allegations of sexual violence does not relieve a school of its duty to conduct a Title IX investigation  It also instructed schools not to wait until the conclusion of a criminal investigation or proceeding to begin their own investigation under Title IX, and if appropriate, to take immediate steps to protect students while a criminal investigation occurs  Although a school may need to temporarily delay an investigation while a criminal fact-finding occurs by police, once the police have finished their fact-finding, the school must promptly resume and complete its fact-finding for Title IX purposes  The 2011 Dear Colleague Letter also outlined various elements of a school's grievance procedures that are critical in order to provide "prompt and equitable resolution of sexual harassment complaints," including sexual violence  The Letter noted "in order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard " This standard contrasted with the 2001 Guidance, which did not impose an evidentiary standard on school investigations, as well as the prior practice of some schools, which used a "clear and convincing" standard  A preponderance of the evidence standard, which requires a showing that a fact or event is more likely than not, is lower than a clear and convincing standard, which requires providing the "ultimate factfinder [with] an abiding conviction that the truth of       factual contentions are 'highly probable '" The Letter also strongly discouraged schools from allowing the parties in a hearing to personally cross-examine one another  It noted that if a school allows parties to appeal a finding or remedy, it must do so for both parties  Following requests by schools on how to adequately comply with the 2011 Dear Colleague Letter, ED issued a forty-six-page supplemental Questions and Answers document in 2014 (2014 Q&A) that further explained the responsibilities of schools with regard to allegations of student-on-student sexual violence  It provided more specific instructions to educational institutions regarding their obligations under Title IX  Like the 2011 Dear Colleague Letter, the 2014 Q&A took the form of a guidance document, rather than a legally enforceable legislative rule  The Q&A made clear that when "a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate steps to investigate or otherwise determine what occurred " It clarified that, in cases of student-on-student sexual violence, a school violates Title IX when (1) "the alleged conduct is sufficiently serious to limit or deny a student's ability to participate in or benefit from the school's educational program" (creating a hostile environment) and (2) "the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects " The 2014 Q&A also explained that Title IX requires schools, upon notice of an allegation, to protect complainants and ensure their safety through the use of interim steps before an investigation is complete  Among other things, it further specified in detail the requirements of Title IX with respect to the responsibilities of a school's Title IX Coordinator (the employee required by regulation to coordinate a school's compliance with Title IX), the elements expected in a school's written grievance procedures for responding to complaints of sexual violence, and which individuals qualify as responsible employees who are required to report allegations of sexual violence to a school's Title IX Coordinator  The document also detailed the requirements for schools in conducting investigations into alleged sexual violence  It stressed that while a school is permitted to use its own "student disciplinary procedures" to process complaints of sexual violence, that if a school chooses to do so, the imposition of sanctions against a perpetrator, "without additional remedies, likely will not be sufficient to eliminate the hostile environment and prevent recurrence " The 2014 Q&A noted that because Title IX investigations will not result in the incarceration of individuals, "the same procedural protections and legal standards are not required" in Title IX investigations as are compelled in criminal proceedings  Even if a criminal investigation of student-on-student sexual violence is ongoing, a school must conduct its own Title IX investigation  Indeed, the conclusion of a criminal investigation without charges "does not affect a school's Title IX obligations " The document also explained that schools were not required to conduct hearings to assess allegations of sexual violence, but if they did, they could not require the complainant to attend  Further, in the 2014 Q&A, OCR "strongly discourage[d]" schools from allowing parties to personally cross-examine one another because such actions "may be traumatic or intimidating, and may perpetuate a hostile environment " Instead, schools could allow parties to submit questions to a trained third party to ask on their behalf  The third party was advised to screen those questions "and only ask those it deem[ed] appropriate and relevant to the case " In response to the foregoing guidance from ED, as well as increased oversight from OCR between 2011 and 2016, schools developed a variety of procedures to ensure that their responses to allegations of sexual assault complied with Title IX  Generally speaking, the specific type of procedures for investigating allegations of sexual harassment vary considerably across educational institutions  While Title IX provides ED with some discretion in terms of administrative enforcement of the statute's bar on sex-based discrimination, including the ability to require public and private schools to develop certain procedures for handling complaints (as long as those schools receive federal funds), this discretion is constrained with respect to state actors (including public universities) by due process protections that set a baseline for the procedural protections afforded to the accused  In the public university context, a number of students subject to disciplinary sanctions for misconduct thus challenged the disciplinary procedures in state and federal courts as unconstitutional  In particular, a number of students faced with disciplinary action by public universities have raised constitutional challenges to the Title IX procedures used to find them responsible for sexual misconduct, arguing that universities violated the Due Process Clause in the handling of their case  The Due Process Clause of the Fourteenth Amendment requires states to observe certain procedures when depriving individuals of life, liberty, or property  In addition to protecting against the deprivation of an individual's physical property, the Constitution guards against the deprivation of certain "property interests" without due process  The property interests protected by the Due Process Clause are not themselves created by the Constitution; instead, those interests arise from an independent source, such as state or federal law  To have a protected property interest in a government-created benefit, one must show a "legitimate claim of entitlement" that originates in "existing rules or understandings that stem from an independent source such as state law " Likewise, when a state deprives an individual of liberty, states must afford due process to the individual  In fact, when a "person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," due process may be implicated  In these circumstances, courts often require an accompanying state action that alters or removes a legal status to constitute a deprivation of liberty  Precisely what procedures are constitutionally required before depriving individuals of a protected interest can vary  When deciding what process is due, courts balance three factors enunciated by the Supreme Court in Ma thews v  Eldridge : (1) "the private interest that will be affected by the official action"; (2) the risk of an erroneous deprivation and the probable value of additional procedures; and (3) the interest of the government  In general, the Court has made clear that individuals with a protected interest are entitled to notice of the proposed action and a "meaningful opportunity to be heard" before the state may deprive them of that interest  The Supreme Court has explained, however, that due process is not a "technical conception with a fixed content unrelated to time, place, and circumstances " Instead, the concept is "flexible and calls for such procedural protections as the particular situation demands " In conducting the balancing of factors pursuant to  M athews v  Eldridge , the severity of the deprivation is a key factor in determining what procedures are constitutionally required  In general, the stronger the private interest at risk of deprivation, the more formal and exacting procedures will be required by courts  The only Supreme Court case to focus on procedural due process in the (nonacademic) student discipline context is Goss v  Lopez   In that case, high school students challenged their suspension from school for up to 10 days without a hearing  The Court first ruled that the public school students had a "legitimate entitlement to a public education," which was a property interest protected by due process; and that interest was deprived by the suspension  As to the process required, the Court ruled that, at a minimum, "students facing suspension       must be given some kind of notice and some kind of hearing " The Court also clarified that cases of more stringent sanctions, such as suspensions beyond 10 days or expulsions, "may require more formal procedures " Generally speaking, because public universities constitute state actors subject to the Due Process Clause, they must comply with constitutional standards when suspending or expelling students  Private universities, on the other hand, do not  The Supreme Court has assumed, without deciding on the merits, that students of public universities enjoy a "constitutionally protectable property right" in their continued enrollment in an educational institution  A number of federal courts of appeals have ruled that students enrolled in public universities have liberty and/or property interests in their education and that expulsion and certain suspensions can constitute a deprivation of that interest  As discussed in further detail below, as a baseline matter, federal courts have held that due process requires public schools to provide students with notice of the charges against them, the evidence used to make a determination, and the ability to present their side of the story to an unbiased decisionmaker  Of course, whether a public university has afforded a student due process "is a fact-intensive inquiry and the procedures required to satisfy due process will necessarily vary depending on the particular circumstances of each case " While colleges and universities have developed various procedures to comply with OCR's guidance regarding an institution's response to allegations of sexual harassment, a number of individuals subject to these disciplinary processes have challenged some of these procedures in federal court  Several courts have since issued decisions in cases brought by students asserting a due process violation in the context of a Title IX investigation or adjudicatory proceeding  The following section discusses recent notable judicial rulings that address the constitutionality of disciplinary proceedings in the context of sexual misconduct  The discussion below is organized by the type of claim raised against the public university: 1  the university failed to provide adequate notice of the charges against the student; 2  the university did not permit the accused student to confront and challenge the credibility of witnesses who testified against him; 3  the university allowed biased decisionmakers to oversee the proceedings; and 4  the university employed unfair review processes when rehearing an allegation brought by a complainant  Importantly, some of the judicial rulings discussed below address whether a student's stated claim is sufficient to survive a motion to dismiss and do not reach conclusive determinations about the evidence sufficient to establish a due process violation  One type of legal challenge raised by students accused of sexual misconduct is that the public universities failed to adequately notify them of the charges  As an initial matter, reviewing courts have taken the view that there generally will be no due process violation on notice grounds when the school (1) provides a student with timely notice of the actual, full charges against him; and (2) provides the accused student with a meaningful opportunity to prepare for the disciplinary hearing against him  The absence of such protocols, however, can form the basis of a viable due process claim  For example, at one university, an accused student alleged that he was interviewed by a school staff member assigned to investigate charges of sexual misconduct against him without first being notified of the existence of the sexual misconduct allegation  The student was eventually suspended from the university  A federal district court ruled that, given the severity of the suspension (three years), the lack of notice could amount to a due process violation  The court thus held that the student had stated a claim sufficient to survive a motion to dismiss  In another case, an accused student alleged that he was not given adequate notice of the scope of charges against him  Rather, the school only notified him that his conduct on a particular day was under review, but expelled him for sexual misconduct that occurred in relation to other incidents and dates  The federal district court ruled that "[b]y conveying a limited scope of focus to plaintiff, defendants prejudiced plaintiff's ability to mount an effective defense, which increased the possibility of an erroneous outcome " Taken together with other procedural issues in the school's investigation and decision, the court concluded that the school had deprived the student of a liberty interest without due process of law  Similarly, the Sixth Circuit ruled that a student suspended by a university because of suspected sexual assault had sufficiently pleaded a due process violation when the university allegedly did not make available the evidence used in its disciplinary decision against him  The university's Title IX investigator compiled an investigatory report, which was allegedly used by the school's disciplinary hearing panel to adjudicate the student's case  However, the investigator failed to provide the report to the defendant  The court reasoned that the Constitution requires that a school provide the evidence used against a student in the context of significant disciplinary decisions and that a failure to do so constitutes a due process violation  A number of students have brought claims alleging a denial of due process because they were not afforded the opportunity to cross-examine witnesses in school disciplinary hearings  Courts have often rejected these arguments, however, in both sexual harassment proceedings and other disciplinary hearings, noting that the rights of students in disciplinary proceedings are not the same as those of criminal defendants  Case law reflects that courts have been more willing to entertain such claims when students have been denied an opportunity to challenge the credibility of witnesses where a witness's testimony concerns disputed and critical facts  As a general matter, cross-examination has not been regarded as a necessary feature of due process in the civil context  Even outside the context of sexual harassment allegations, courts have often denied due process challenges to university adjudicatory proceedings where students were not permitted to directly cross-examine witnesses, noting that the Due Process Clause does not guarantee the right to cross-examination in school disciplinary proceedings  This principle has been applied in recent cases alleging due process violations in the sexual harassment context  In one case, students challenged a university's adjudicatory proceedings regarding allegations of sexual assault, where accused students were permitted to submit written questions to a panel chair rather than directly to the complainant  The reviewing district court nonetheless rejected a due process challenge to the proceedings  Similarly, the Sixth Circuit denied a due process challenge to a university's disciplinary hearing concerning sexual assault allegations where students were not permitted to directly cross-examine their accuser  The students were permitted to submit written questions to the hearing panel, but were not permitted to submit any follow-up questions, and the panel failed to ask all of the questions they submitted  The circuit court reasoned that the proceedings satisfied the "limited" requirement of cross-examination where credibility is at issue, as the "marginal benefit that would accrue to the fact-finding process by allowing follow-up questions … is vastly outweighed by the burden" on the school  Likewise, the Fifth Circuit rejected a due process challenge to a university's disciplinary proceedings where the challengers argued they were denied the ability to effectively cross-examine witnesses and confront their accuser  In that case, the court noted that the school's decision did not rest on testimonial evidence, but on the videos and a photo taken and distributed by one of the challengers  Where a credibility determination was critical to the outcome of a proceeding, however, courts have often ruled in favor of due process challenges  For instance, the Sixth Circuit held that a university violated due process when it failed to provide any form of cross-examination in the hearing and the disciplinary decision necessarily rested on a credibility determination  In that case, the university based its decision to suspend a student entirely on the hearsay statement of the complainant, who did not appear at the disciplinary hearing  Importantly, the court noted that the suspended student only requested the additional procedure of posing questions to his accuser through the hearing panel, but he did not ask for the opportunity to directly cross-examine her  The court concluded that in such circumstances, some method must be made available to the adjudicative body to "assess the demeanor of both the accused and his accuser " The court concluded this procedure was necessary to comport with due process when the university's decision rested on a credibility determination  Likewise, the absence of a live hearing may sometimes form the basis of a viable due process claim  For instance, one federal district court ordered a university to provide an accused student facing the possibility of expulsion with a live hearing in order to comply with due process  In that case, the university's procedures for handling sexual misconduct allegations involved an investigator who would meet separately with the parties, conduct interviews with witnesses, and eventually reach a determination as to culpability without any opportunity for a hearing  The court reasoned that due to "the University's method of private questioning through the investigator, Plaintiff has no way of knowing which questions are actually being asked of Claimant or her response to those questions " Accordingly, the court concluded that the university violated the accused student's right to due process  Similarly, the Sixth Circuit has ruled that where credibility is at issue, a university "must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder " In that case, a university investigator concluded that the evidence supporting a finding of sexual misconduct was not sufficient, but the university's appeals board reversed after reviewing the report because it found the description of events given by the alleged victim and adverse witnesses more persuasive  At no time was the accused student given a live hearing or a chance to cross-examine his accuser or any adverse witnesses  The Sixth Circuit ruled that because the university ultimately had to "choose between competing narratives" in order to resolve the case, due process required a chance to cross-examine his accuser and adverse witnesses before a neutral fact-finder  Some students have also brought due process claims alleging that they were denied the ability to offer exculpatory evidence on their own behalf  Courts appear to examine such claims on a largely fact-specific basis  For instance, in one suit brought against a university, a student alleged he was denied the opportunity to present physical exculpatory evidence on his own behalf at a sexual assault disciplinary hearing  Specifically, the student claimed he was unable to present text messages at his hearing that he claimed would exonerate him  The district court ruled that this allegation raised concerns that he was denied due process  Students subject to disciplinary proceedings regarding sexual harassment or assault at institutions of higher education have also brought challenges alleging that a decisionmaker was biased against them  As a threshold matter, courts generally assume that school disciplinary panels are "entitled to a presumption of impartiality, absent a showing of actual bias " A plaintiff must generally allege facts sufficient to overcome this baseline presumption, such as statements by decisionmakers or a pattern of decisionmaking evidencing bias  For instance, a Fifth Circuit panel rejected a due process claim alleging bias in a university disciplinary hearing concerning sexual assault because the challengers failed to show how the integrity of the proceedings was undermined  In that case, the individual tasked as a victim advocate for the school investigated the charges against the accused and advised the panel members who made the disciplinary decision  The court reasoned that the investigator relied on photo and video evidence to render his findings to the panel and "there is nothing in the record       to suggest that a different investigator would have uncovered information diminishing the significance of that graphic evidence to the initial findings " Further, a separate university attorney advised the panel that they were free to draw their own conclusions from the proffered evidence  Evidence of bias in the consequential behavior or statements of decisionmakers, however, may give rise to a viable due process challenge  For example, the Sixth Circuit recently held that a student sufficiently pleaded a due process claim where he alleged that a university disciplinary hearing for alleged sexual assault was biased against him  In that case, one of the hearing panel members acted as investigator, prosecutor, and judge  The court noted that that fact alone did not give rise to a due process violation  Rather, because that individual also allegedly dominated the panel with remarks intended to reduce the defendant's credibility, and reportedly said during the hearing, "I'll bet you do this [commit sexual assault] all the time," the student had plausibly alleged that the hearing panel member was not impartial and had pre-judged his case  Courts have also addressed claims alleging a due process violation for bias based on institutional pressures, such as the sexual assault training received by university officials  For example, one district court rejected a due process claim which argued that university staff members were biased because they received sexual assault training that was not balanced with training for protecting the due process rights of accused students  The court reasoned that it was a "laudable goal" for the university to raise awareness of sexual assault and increase sensitivity to problems that victims of sexual violence experience  Plaintiffs' mere belief that the school "ha[d] a practice of railroading students accused of sexual misconduct simply to appease the Department of Education and preserve its federal funding" was unsupported by any evidence  In contrast, another district court rejected a motion to dismiss a due process claim brought by an expelled student alleging that the investigation and training materials given to the panel who decided his case were biased  The court reasoned that while this was a "he-said/she-said" case, "there seems to have been an assumption under [the] training materials that an assault occurred  As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered " Accordingly, the court concluded that there may have been a due process violation because it was "plausible that the scales were tipped" against the accused student  Finally, a number of federal district court cases have addressed allegations that a university's disciplinary proceedings violated due process on the basis of unfair review processes for rehearing appeals  In one district court case, a student was cleared by a hearing panel on a charge of sexual assault, but the university ordered a new hearing, apparently premised only on the school being unable to adequately prove its case in the first hearing  The district court found this to be fundamentally unfair to the student and ruled that the allegations survived the university's motion to dismiss  Similarly, in another district court case, a suspended student challenged the validity of a school's procedures where he was initially found not responsible for sexual misconduct by a hearing board, but was later determined guilty after the complainant appealed that decision  At the administrative appeal stage, the school did not give the defendant sufficient notice of, or time to respond to, new evidence against him; did not provide him with details of the identity of a woman he was newly accused of assaulting; did not tell him the names of the members of the appeal board; did not give him notice of the appeal board's meeting; and did not permit him to attend that meeting  The appeals board reversed the initial hearing board's determination that the student was not responsible for sexual misconduct, without explanation, and without any oral presentations or live testimony  The reviewing federal district court ruled that the school failed to provide the student with a meaningful hearing  Likewise, a student brought a claim in federal district court against a university after being expelled for sexual assault even though he had been found not responsible by an initial hearing panel  In that case the school permitted a rehearing after the complainant appealed the initial hearing panel's decision, and subsequently the individual presiding over the appeal expelled the student  The individual presiding over the appeal conducted off-the-record and ex parte meetings with the accuser and failed to deliver the accused student a record of those meetings  According to the reviewing court, by the time the student was permitted to present his defense, the individual overseeing his appeal had pre-judged the case, and expelled the accused student without providing a basis for the decision  The court ruled that these procedural inadequacies, combined with a failure to offer the student notice of the full scope of allegations against him, combined to constitute a due process violation  With the foregoing considerations in the background, in September 2017 OCR withdrew the 2011 Dear Colleague Letter and 2014 Questions and Answers document  ED explained that it would begin the rulemaking process to codify a school's responsibilities under Title IX  In the interim, ED stated that it would continue to rely on the 2001 Guidance; it also issued a new Question and Answer document indicating how the department would address sexual misconduct during that time  The document notifies schools that they may, in certain circumstances, resolve complaints through mediation  It also notifies schools that they may choose to allow appeals either by both parties or solely by the party found to have committed sexual misconduct and not the alleged victim  On November 29, 2018, ED issued a notice of proposed rulemaking in the Federal Register   If adopted, the proposal would significantly alter the responsibilities of schools in responding to allegations of sexual harassment  Among other things, the proposed regulation would (1) define in narrower terms what conduct qualifies as sexual harassment under Title IX; (2) require "actual notice" of harassment, rather than constructive notice, to trigger a school's Title IX responsibilities; (3) provide that a school's response to allegations of sexual harassment will violate the statute only if amounting to deliberate indifference; and (4) impose new procedural requirements that reflect concern for due process when schools investigate allegations and make determinations of culpability  The proposed regulation would first define sexual harassment in the following ways: an employee conditioning the provision of a benefit, service, or aid on the individual's participation in unwelcome sexual conduct (i e , quid pro quo); "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity" (i e , hostile environment); or sexual assault (as defined in regulations implementing the Clery Act)  Notably, among the changes to past definitions of sexual harassment issued by ED, the proposal would establish a higher threshold to show a Title IX violation based on hostile environment harassment than that required by ED in the past  As explained in an earlier section of this report, ED's 2001 Guidance described hostile environment harassment as sexually harassing "conduct [that] is sufficiently serious to deny or limit a student's ability to participate in or benefit from the school's program based on sex " The proposed regulations would instead generally adopt the standard for actionable harassment that the Supreme Court's 1999 Davis decision applied in the context of private suits for damages: "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity " In other words, whereas ED previously defined a hostile environment harassment as harassment that is "sufficiently serious to limit" a student's ability to benefit from or participate in a school's program, the proposed regulations would define a hostile environment as one "that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity " Second, in a departure from past administrative practice, in which ED considered "constructive notice" (i e , known or should have known) to trigger a school's responsibilities in cases of student-on-student harassment, and did not impose a notice requirement in certain cases of harassment by a teacher or employee, the proposal would establish that a school has a duty to respond to allegations of sexual harassment only when it has "actual knowledge " Actual knowledge is defined as notice of harassment (or allegation of harassment) to a school's Title IX Coordinator or official with authority to institute corrective measures; the regulations explicitly reject imputing knowledge to a school based on respondeat superior or constructive notice  Notably, in contrast to past guidance from ED, the mere ability or obligation to report by a school employee does not qualify them as one who possesses authority to institute corrective measures  The proposal explains that this threshold for triggering a school's obligations is intended to align the administrative standard imposed by ED with that articulated by the Supreme Court in Gebser and Davis in the context of private litigation seeking money damages  Further, the proposed regulations would compel schools to respond only to sexual harassment that occurs within a school's "education program or activity " This contrasts with past ED guidance which provided that schools sometimes will be responsible to respond to harassment that occurs "outside a school's education program or activity " For instance, past ED guidance (since rescinded) required schools to "process all complaints of sexual violence, regardless of where the conduct occurred," in order to determine if the conduct has effects on campus  In another departure from prior administrative practice, in which ED judged a school's response under a "reasonableness" standard, the proposed regulations only require a school to respond in a manner that is not "deliberately indifferent " Deliberate indifference is a "response to sexual harassment [that] is clearly unreasonable in light of the known circumstances " Once again, this would tether a school's responsibility to that announced by the Court in Davis in the context of private suits for damages  The proposal explains that, for ED, this standard aptly holds schools accountable while allowing for flexibility in making disciplinary decisions  The proposal outlines three situations in which a safe harbor is provided to a school from a finding of deliberate indifference  First, when a formal Title IX complaint is made (by a complainant or Title IX Coordinator), the proposed regulations outline a number of grievance procedures (outlined below) that schools must follow  When a school follows these procedures it would not be deliberately indifferent and has not discriminated under Title IX  Second, if a school has actual knowledge of harassment because of multiple complainants, the Title IX Coordinator must file a complaint  Again, compliance with the grievance procedures would negate any inference of deliberate indifference in this situation  Third, with respect to institutions of higher education, and in situations where there is not a formal complaint, a school would not be deliberately indifferent if it offers and implements supportive measures to the complainant that are aimed to restore or preserve the complainant's access to a school's education program or activity  The school must also at this time notify the complainant in writing of the right to file a formal complaint  As long as an institution of higher education follows these requirements, it would not be deliberately indifferent  Aside from these three situations, the proposed regulations provide that a school with actual knowledge of sexual harassment in an education program or activity must respond in a manner that is not deliberately indifferent  The proposal would also allow schools to remove an individual accused of sexual harassment from an educational program or activity on an emergency basis  However, a school must conduct an individualized risk and safety analysis, determine that the removal is justified because of an immediate threat to students or employees, and provide the accused with notice and an opportunity to challenge the decision  The regulations also allow schools to place a nonstudent employee on administrative leave during an investigation  A significant component of the proposal reflects concern that schools provide accused students with due process protections during the fact-finding process and ultimate determination of culpability  As a threshold matter, schools must investigate allegations received in a formal complaint, but if the alleged conduct would not (if proved) constitute sexual harassment under the regulations, or if it did not occur within a sch ool's program or activity, the complaint must be dismissed  Upon receipt of a formal Title IX complaint regarding sexual harassment, a school must provide written notice to the relevant parties of the allegations, including notice of the available grievance procedures, and notice of the allegations constituting a potential violation, "including sufficient details known at the time and with sufficient time to prepare a response before any initial interview " A school's grievance procedures must treat complainants and respondents equitably, which means that a school must both provide remedies for complainants upon a finding of sexual harassment as well as due process protections for a respondent before any sanctions are imposed  The proposal would provide that a school's treatment of a complainant in response to a formal complaint of harassment can constitute discrimination in violation of Title IX; likewise, a school's treatment of a respondent can discriminate on the basis of sex in violation of Title IX  The procedures must also require an objective evaluation of evidence (both inculpatory and exculpatory) and provide that credibility determinations not be made based on one's status; require that individuals involved in the investigation or decisionmaking process not be biased and receive training on ensuring student safety and providing due process for all parties; include a presumption that respondents are not guilty until proven otherwise; and describe the range of possible sanctions and remedies available, the standard of evidence used, the ability to appeal (if offered) and the range of available supportive measures  With respect to a school's actual investigation of alleged harassment, the proposed regulations require that a school must: place the burden of proof and of gathering evidence on the school (rather than either party); allow each party equal opportunity to present witnesses and evidence; not restrict parties from gathering and presenting relevant evidence or from discussing the allegations; permit both parties equally to have their choice of advisor or other person join them during proceedings, although the school may restrict an advisor's participation so long as restrictions apply equally to both parties; provide parties with written notice of the relevant details of hearings and interviews and allow sufficient time to prepare; for institutions of higher education, provide a live hearing where the decisionmaker must allow each party to ask the other party and witnesses all relevant questions (and follow-up questions) including those that challenge one's credibility; cross-examination must be done by the party's advisor; at the request of either party, schools must allow for cross-examination via technology with the parties in separated rooms; decisionmakers must not rely on any party or witness's statement if they do not submit to cross-examination; allow both parties an equal opportunity to review evidence from the investigation that is directly related to the allegations; and develop a report summarizing the relevant evidence and provide this to the parties at least 10 days prior to a hearing (or time where responsibility is determined)  Notably, these requirements depart from past ED guidance by requiring, for institutions of higher education, a quasi-judicial proceeding in the form of a live hearing  Each party may question the other side, and cross-examination must be conducted by a party's advisor  The proposed regulations would also significantly alter the ultimate decisionmaking requirements for schools  For instance, the decisionmaker in a proceeding may not be the investigator or the school's Title IX Coordinator  This would bar the practice of some universities that have used a single investigator to both examine allegations and reach a decision regarding culpability  And in contrast to past guidance from ED, the new regulations permit schools to apply either a preponderance of the evidence standard or a clear and convincing standard  However, schools may apply the former only if they use that same standard for conduct violations other than sexual harassment that carry the same maximum disciplinary penalty  Further, schools must apply the same standard of evidence for complaints against students as it does for employees and faculty  A schools may, but is not required to, allow appeals of decisions  If it does so, it must allow both parties to appeal  A school may also, at any point before reaching a final determination, facilitate an informal resolution process as long as it obtains the parties' written consent and notifies them of the requirements of the process  As discussed above, the antidiscrimination mandate of Title IX, enacted in 1972, prohibits discrimination "on the basis of sex" in educational programs in general terms  The statute does not expressly refer to or address sex discrimination in the form of sexual abuse, sexual harassment, or sexual assault  Nor does the statute address when, by whom, or under what circumstances such conduct will amount to a Title IX violation  Given the statute's silence on these issues, federal courts have largely determined when relief is available for individual victims of sexual abuse or harassment  Indeed, in creating the remedial scheme for a private right of action to address such claims, the Supreme Court sought to "'infer how the [1972] Congress would have addressed the issue'" if there had been an express provision in the statute, an approach that the Court observed "inherently entails a degree of speculation, since it addresses an issue on which Congress has not specifically spoken " Likewise, given the sparse statutory language, federal agencies have issued shifting guidelines at to the responsibilities of educational institutions in complying with Title IX  As a general matter, Congress enjoys substantial discretion to modify the terms of Title IX to clarify the appropriate standard in private suits for damages as well as in the administrative enforcement context  Congress could, for instance, amend Title IX to define the specific conduct that amounts to a violation of the statute regarding sexual abuse or harassment  In addition, an amendment could also clarify whether liability for harassment should be handled differently in elementary and secondary schools, as opposed to the university context  Likewise, legislation could distinguish between harassment by teachers from that between students  Further, because the private right of action under Title IX has been judicially implied, rather than expressly codified in statute, Congress could modify the legal standards that apply in a private suit for damages  Finally, aside from directly amending Title IX, Congress could also direct federal agencies to alter their administrative enforcement of the statute  For example, Congress could direct ED to promulgate regulations that distinguish between various types of sexual harassment or treat harassment differently depending on the context 


Report 2:  National Popular Vote opponents oppose the compact on various grounds  Some argue that it is unconstitutional or "anticonstitutional," that is, contrary to the Founders' intentions and the spirit of the nation's fundamental charter  It is also asserted that NPV would solve few of the electoral college system's alleged problem issues and would create some of its own  Finally, some observers note that the NPV compact is an interstate compact as defined in Article I, Section 10, clause 3 of the Constitution, and as such would be subject to congressional approval  This issue is examined in greater detail in a separate section of this report  On the most fundamental philosophical basis, opponents might argue that the NPV compact violates one of the basic principles of majoritarian democracy: it does not require that candidates win a majority of the popular vote in order to gain the presidency  Rather, it would anoint as winner the ticket that gains more popular votes than any other  A majoritarian democracy, it may be argued, should require a majority in order to elect; it may be further noted that the existing system, by comparison, requires a majority in the electoral college  As one commentary noted only the strictest of majoritarians desire a purely majoritarian presidential election system, and those individuals should be deeply troubled by the prospect of plurality presidencies, which the NPVC [sic] expressly countenances  Indeed, the NPVC promises to create more difficulties and "misfires" in its own way than the Electoral College system its proponents so earnestly seek to replace  Further, opponents might ask how the NPV compact would function in the event of a multicandidate election, a phenomenon that recurs from time to time in U S  presidential elections  One commentator posited the following problematic scenario under such circumstances: Under the compact, one can easily imagine a multi-candidate race in which a candidate would win, say, a thirty-four percent plurality of the popular vote nationwide while losing in every state and D C  If all of the states and D C  were signatories to the compact, all the electoral votes in such a hypothetical race would be awarded contrary to the will of voters choosing electors (still not voting directly for President under this plan)  Would the United States accept a President who wasn't the choice of sixty-six percent of those voting, nor even the choice of a single state? The existing electoral college system, NPV skeptics might also assert, is a fundamental element in the federal constitutional arrangements established by the Constitution  Fearing "the tyranny of the majority," the Founders established a system of government that provides checks and balances designed to restrain the majority and secure minority rights  These principles are also embedded in the structure of federal elections: the Senate, the House of Representatives, and the presidency were deliberately provided with different terms of office and different electorates, and the states were given an important role in the federal election process  In particular, through the electoral college the United States elects its national Presidents and Vice Presidents in a state-based federal election  Successful nominees are compelled under this system to present a broad political vision that commands nation-spanning "concurrent majorities" and appeals to the great variety of Americans  As in the case of the Senate, less populous states are accorded a small numerical advantage by assignment of two at-large electors reflecting the Constitution's equal apportionment of Senators to each state regardless of its population  The NPV initiative, they could claim, would discard the Founders' intentions in favor of what they consider to be a flawed "majoritarian" presidency that would ill-serve a continent-spanning and profoundly diverse republic  Another criticism centers on the use of the NPV compact to effect a fundamental change in the presidential election process and a de facto amendment to the Constitution, but without following the procedures set out in Article V  Critics may note that NPV's founders admit their plan is an "end run" around the Constitution  Proponents might counter with the argument that Article V presents too high a hurdle for what they consider a necessary reform of the system  Opponents, however, could respond that the Founders intended the various supermajority requirements in Congress and the states to ensure that successful constitutional amendments enjoy broad national support  The bare majority of electoral votes required to implement NPV, they might note, meets none of these supermajority requirements  As one study critical of the NPV initiative concluded, because the use of an interstate compact "does not conform to the constitutional means of changing the original decisions of the Framers, NPV could not [therefore] be a legitimate innovation " A final argument on this line might be that one "end run" around the amendment process might lead to others, setting a dangerous precedent for similar efforts in the future  Opponents might note that the NPV would eliminate the electoral college system's multiplier effect generated by the winner-take-all or general ticket system used in 48 states and the District of Columbia, which tends to magnify the winning ticket's margin of victory, and is said to confer greater legitimacy to the victors  For instance, in 2016, Republican nominee Donald Trump's clear electoral vote majority of 304 votes (56 5% of the total), compared with Democratic nominee Hillary Clinton's 227 (42 2% of the total) could be said to reinforce and confirm his victory, notwithstanding Clinton's plurality of the popular vote (48 2%), compared with Trump's 46 1%  From a practical standpoint, NPV opponents might argue that the NPV would actually lead to an increase in contested election results and legal challenges in the states, as the political parties maneuver to claim every possible vote  They assert that the existing tabulation of popular votes within each state reduces contested results and recounts  Under NPV, the incentive to gain every vote would arguably lead to far broader disputes and widespread recounts at every level of election administration  As a Heritage Foundation study concluded Under the NPV … any suspicions necessitating a recount in even a single district would be an incentive for a national recount     The prospect of a candidate challenging "every precinct, in every county, in every state of the Union" should be abhorrent to anyone who witnessed the drama, cost, delay, and undue litigation sparked by the Florida recount of 2000  Opponents might also assert that the increased incidence of recounts would be further complicated by wide-ranging disparities in state procedures, potentially leading to prolonged periods of uncertainty following close presidential elections  Critics may also note that the NPV plan contains no "statute of limitations," unlike proposed constitutional amendments, for which Congress typically sets a seven-year ratification period  Where, critics may ask, is a similar time limit that would "sunset" the NPV compact, after which it would expire or return to "square one"? According to its website, NPV was launched on February 23, 2006; if it were a constitutional amendment proposed by Congress, it would have expired on February 23, 2013, since by the end of the customary seven-year deadline it was "ratified" by only eight states and the District of Columbia  By what reasoning, they might ask, should the NPV be exempt from the standards of timeliness and contemporaneity Congress customarily sets for constitutional amendments? Opponents might reject claims that, under NPV, campaign spending and candidate appearances would be spread and scheduled more widely, beyond the current concentration of time and resources in battleground states  They might argue that spreading campaign resources and candidate events in non-battleground states is a questionable argument to justify a fundamental change in the presidential election process  Campaign appearances and spending, they could assert, should not be considered to be a local economic stimulus package, nor are the amounts in question sufficient to make much of a difference in the economic condition of most states  As one critical analysis notes, "    the nation does not hold presidential elections to foster local economic development " Moreover, they might continue, it is equally dubious to assert that nominees will slight the concerns of citizens of the non-battleground states from which they draw their greatest support, or that concentrated campaigning in the battleground states somehow "disenfranchises" voters in others  In the modern era, a small percentage of voters actually attends an in-person presidential or vice presidential candidate appearance  Television (especially broadcast and cable TV news networks), social media, the internet, and newspapers—not the traditional rallies, torchlight parades, and handbills—dominate presidential election campaigns in the 21 st century  In addition to policy issues discussed previously, some observers have also raised questions related to the NPV initiative based on the fact that it is an interstate compact as defined in the Constitution  Others have questioned whether NPV might conflict with some provisions of the Voting Rights Act  The NPV initiative has been described by its supporters variously as a bill, a state-level statute, and an interstate compact  The latter reference necessitates an analysis of whether the initiative complies with the Compact Clause of the Constitution  An interstate compact—under the broadest understanding—is a contract between two or more consenting states  The Supreme Court has further suggested that an interstate compact often requires reciprocal commitments between the governments of two or more states, such that one state's commitment is conditioned on the action of another state and no state can unilaterally repeal its commitment  The use of interstate compacts predates the Constitution, as the Articles of Confederation contained a similar Compact Clause that provided a qualified prohibition on states entering into any agreements between them without the consent of Congress  The chaos resulting from the disunity created by the Articles of Confederation prompted the Framers of the Constitution generally to "impose more uniformity" among the states, resulting in a Constitution that wholly prohibits states from entering into any treaties, alliances, and federations  Nonetheless, the Constitution maintained the Articles of Confederation's qualified prohibition on interstate compacts and agreements, allowing states to enter into an interstate compact so long as the participating states seek the consent of Congress  Specifically, the Compact Clause provides that "No State shall, without the Consent of Congress     enter into any Agreement or Compact with another State     " While the historical rationale for Article I's qualified prohibition on interstate compacts is unclear, the Compact Clause generally reflects the view of the Framers that states should be able to work cooperatively together, as well as the concern that unchecked interstate alliances might threaten the harmony of the Union or the authority vested by the Constitution in the federal government  As the Supreme Court noted in Cuyler v  Adams , "By vesting in Congress the power to grant or withhold consent, or to condition consent on the states' compliance with specified conditions, the Framers sought to ensure that Congress would maintain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority " The Compact Clause places no limits on what might be done through an interstate compact other than the requirement of congressional consent  In the early years of government under the Constitution, compacts were used almost exclusively to settle boundary disputes  Beginning with the establishment of the Port of New York Authority in 1921, however, compacts began to be used to address more complex, regional issues requiring intergovernmental cooperation  Some compacts are merely advisory in form, but others may be regulatory, with significant powers granted to multistate commissions  More recently, compacts have addressed such wide-ranging concerns as mental health treatment, law enforcement and crime control, education, driver licensing and enforcement, environmental conservation, energy, nuclear waste control, facilities operations, transportation, economic development, insurance regulation, placement of children and juveniles, disaster assistance, and pollution control  Approximately 200 interstate compacts are in effect today  Accordingly, the central legal issue with respect to the Compact Clause is whether a given interstate compact requires the consent of Congress  While a "literal" reading of the Compact Clause "would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States [emphasis added]," the Supreme Court has repeatedly rejected such a reading  In 1893, in Virginia v  Tenness e e , Justice Stephen Field, writing for the Court, contended that a broad reading of the Compact Clause would "embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects[,]" requiring congressional consent to agreements "which the United States can have no possible objection or have any interest in interfering with," as well as those that "may tend to increase     the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States     " Surmising that the Compact Clause could not have been intended to have such a broad reach, Justice Field concluded that the Clause prohibits states from entering into compacts without congressional consent only when the underlying compact is "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States " The Supreme Court has subsequently reaffirmed Justice Field's "functional view of the Compact Clause," and, accordingly, generally where an agreement does not fall within the scope of the Compact Clause as envisioned by the Court in Virginia v  Tennessee , the agreement "will not be invalidated for lack of congressional consent " Whether the NPV initiative requires congressional consent under the Compact Clause first requires a determination as to whether NPV even constitutes an interstate compact  At times, its supporters have resisted framing the initiative as an interstate compact, arguably out of concern for running afoul of the Compact Clause's provisions  For example, Professor Akhil Amar has argued that because the initiative does not create a "new interstate governmental apparatus," the NPV should not be considered an interstate compact, as NPV compact signatory states are merely exercising power collectively that each state could exercise on its own  It is unclear, however, whether the creation of a new interstate governmental entity formed out of an agreement between two or more states is necessary, as opposed to sufficient, in order to deem an agreement as being an interstate compact subject to the Compact Clause  While the Supreme Court, in Northeast Bancorp , suggested that a "joint organization or body" formed out of an interstate agreement is a "classic indic[ium] of a compact," the Court has never adopted a definition of an interstate compact that solely rests on the existence of an interstate governmental body  Instead, the Court appears to have adopted a broader definition of what an interstate compact can entail  For example, in Virginia v  Tennessee , the Court noted that the words "compacts" and "agreements" are synonymous and "cover all stipulations affecting the conduct or claims of the parties " In other words, when two or more states enter into a stipulated agreement whereby one state agrees to perform an act in consideration for a reciprocal act by the other state(s), that agreement can be considered an interstate compact  This broad definition of a compact appears to encompass the NPV compact, as the initiative requires signatory states to agree mutually to appoint their electors to the winner of the national popular vote  Moreover, NPV binds each assenting state, as no member state can withdraw from it within six months or less of the end of a President's term  Because NPV prohibits states from freely "modify[ing] or repeal[ing] [the agreement] unilaterally" and requires "reciprocation" of mutual obligations, it appears that the initiative can be described as an interstate compact  Assuming the NPV initiative is an interstate compact, the question remains whether it is one that implicates the Compact Clause  The answer to that question primarily depends on whether NPV is "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States  " In other words, the "test" for whether a particular interstate compact requires congressional consent is centrally concerned with vertical balances of power between the federal government and the states; namely, "whether the Compact enhances state power quoad the National Government " While the NPV arguably increases the political power of the states that have consented to it by ensuring that those states' desired outcome for the presidential election—the awarding of the majority of electoral votes to the presidential candidate supported by the majority of the voting populace—it is unclear how that increase in political power would be at the expense of the power of the federal government  After all, the Constitution provides the federal government with no role in determining the members of the electoral college  One scholar has suggested that the NPV initiative would lead to a vertical alteration of power by eliminating the possibility that the House of Representatives would resolve a presidential election in the absence of an electoral majority for a single candidate because it is premised on a majority of electoral votes going to a single candidate  The House of Representatives, however, has decided only two presidential elections in American history, and whether such an arguably hypothetical and de minimis diminishment of federal power through the NPV would be sufficient to require congressional consent under the Compact Clause is simply unresolved by the relevant case law  While the Supreme Court's case law interpreting the Compact Clause is centrally concerned with vertical federalism concerns (i e , the balance of power between the state and federal governments), the Court has recognized a potential secondary rationale suggested for the Compact Clause: to preserve the horizontal balance of powers among the various states  And horizontal federalism concerns could very well be implicated by the Compact Clause, as the provision appears to have been included in the Constitution out of concern both for the supremacy of the federal government and unity among the various states  Whether the NPV compact threatens the powers of nonconsenting states has been the subject of much debate among academics  Those in support of the initiative have contended that the nonconsenting states do not lose any power as a result of the NPV  According to this line of argumentation, even under the NPV, all states would retain their right to select the electors of their choosing, as nonmember state electors would still be counted in the electoral vote  Others, however, have pointed to the underlying premise of the NPV—to enhance the political power of more populous states in presidential elections—as evidence that the initiative diminishes the power of nonconsenting states  In other words, while non-compacting states would still retain the power to appoint electors, the influence that comes with that power would arguably be diminished because a state's role in the national election would be defined by its percentage of the popular vote and not by its percentage of electors, warranting congressional interest in approving a compact that effectuated such a change in national elections  Ultimately, however, whether the NPV actually threatens the power of nonconsenting states is a debate that remains active within academia but would likely be the source of considerable litigation if the initiative ever became effective  If congressional consent is needed for the NPV, that consent can take various forms  Usually congressional consent to an interstate compact takes the form of a joint resolution or act of Congress specifying its approval of the text of the compact and adding any conditions or provisions it deems necessary, often embodying the compact document  As with most congressional actions, consent to an interstate compact must occur with the approval of both houses and must be signed by the President before it becomes law  Rarely has the President vetoed or threatened to veto consent legislation by Congress  While congressional consent to an interstate compact is most often explicit, consent by Congress may also be implied by subsequent acts of Congress as "[a]n inference clear and satisfactory that Congress     intended to consent" to a compact may be sufficient  Congress may also delegate its power to approve a compact to a federal official so long as an "intelligible principle" against which approval can be measured is apparent  Ultimately, if congressional consent is truly needed for NPV to be effective, the initiative might have difficulty ever being enacted because the approval of both houses of Congress and the President would likely necessitate additional hurdles beyond the already challenging task of amassing support at the state level for the NPV  Beyond the legal issues raised with respect to the Compact Clause, the NPV initiative also potentially raises other broader constitutional concerns, including whether the states can functionally obviate the role of the electoral college through the NPV  Article II of the Constitution establishes that the election of the President should occur indirectly through the election by the electoral college  The choice of an indirect election for the President was a deliberate one by the Framers of the Constitution, because, while noting the importance that the "sense of the people" should influence the choice for President, they found it "equally desirable" for the "immediate election" of the President to be made by a body representative of distinct state interests and removed from the threat of unchecked majoritarianism  The result was that the Constitution established a presidential election process that was "manifestly nonmajoritarian," with the electoral college, a body established to represent the distinct views of each state, as the centerpiece of the election process  The central constitutional issue presented by the NPV, therefore, is whether the states, through an interstate compact, can functionally transform the presidential election system enshrined in the Constitution into a more majoritarian process  Supporters of the NPV argue that the Constitution provides the legal means for states to transform the presidential election system into one where the President is elected based solely on the result of the national popular vote  Specifically, clause 2 of Article II, Section 1 of the Constitution provides the states with the power to "appoint, in such Manner as the Legislature thereof may direct," the electors who represent the state in the electoral college  Facially, the Constitution's primary limitation on the power of a state to select its electors is the final number of electors awarded to each state  While perhaps an argument can be made that the structure, logic, and history of the Constitution place limits on the manner or method in which a state chooses its electors, the text of the Constitution simply does not impose any such limits  Supreme Court case law also supports reading Article II of the Constitution to broadly provide states with wide discretion as to the manner in which its electors are selected  Specifically, in 1892 in McPherson v  Blacker, a unanimous Supreme Court upheld a Michigan law providing for the election by individual congressional district of presidential electors against a challenge that the law violated Article II of the Constitution  In so holding, the Court placed great emphasis on a number of state laws that existed shortly after the ratification that provided a variety of "modes of choosing the electors," including selection by the legislature itself, by a "vote of the people for a general ticket," "by vote of the people in districts," or by some permutation of those methods  Viewing this evidence together with the text of Article II and the historical evidence from the Constitutional Convention led the Court to broadly conclude state legislatures have "conceded plenary power     in the matter of the appointment of electors," allowing the Michigan law to stand  Applying McPherson to the case of the NPV, the argument can and has been made that if the states have plenary power with respect to the manner of how electors are appointed, the power necessarily allows states to select electors in line with the results of the national popular vote  More recently, supporters of the NPV have relied on the Supreme Court's 2015 ruling in Arizona Legislature v  Arizona Independent Redistricting Commission (AIRC) —which held that the State of Arizona had wide discretion under the Elections Clause of the Constitution to select the method by which the state provided for redistricting —to argue that the states retain broad discretion in selecting electors under Article II, which uses similar language to the provision interpreted in AIRC  Others have argued that the structure of the Constitution and historical evidence suggest that the states do not have such vast discretion in appointing electors as to functionally transform the election for President into a national popular referendum  As noted elsewhere in this report, the electoral college was created by the Framers to ensure that states with the least population retained power in the selection of the President, providing a check against domination by the most populous states  The electoral college, being a product of the choices of individual state legislatures, was envisioned by the Framers as a body that would represent the specific interests of a given state, as opposed to the undifferentiated nation at large  Accordingly, it may be argued that allowing the most populous states to collude to ensure that the national popular vote, as opposed to the wishes of an individual state, dictates the results of a state's slate of electors, could arguably be irreconcilable with the Framers' intentions with respect to the electoral college  As such, for those who find the NPV compact constitutionally suspect under Article II, McPherson 's broad pronouncements about the nature of a state's power to appoint electors should be viewed in the context of that particular case, where the state of Michigan was attempting to appoint its electors based on the votes of an individual district in the state, as opposed to the state as a whole  In contrast to the law at issue in McPherson , with NPV, there appears to be no evidence contemporaneous with the ratification of the Constitution of a state selecting its electors in accordance with the results of the national popular vote  Unlike the State of Michigan in McPherson , an NPV state's electors might not be a product of the views of the state at the time of the election, but instead would reflect national popular sentiment about who should be the President  Moreover, the Supreme Court, in interpreting arguably analogous language from Article I of the Constitution allowing states to regulate the manner of the selection of the Members of the House of Representatives and Senate, concluded that the states cannot exercise their delegated authority in a way that would "effect a fundamental change in the constitutional structure " The question that remains is whether the Court in a future case challenging the NPV compact would interpret the states' authority under Article II to appoint electors to be broad enough to allow the President to be selected as a result of the national popular vote, a question that, given the lack of any precise precedent respecting the constitutionality of the NPV compact under Article II, will likely remain unresolved until such time  Other critics claim the NPV compact might violate Sections 2 and 5 of the Voting Rights Act (VRA)  Writing in Columbia Law Review , David Gringer invokes the voting power theory  He argues that the plan conflicts with Section 2 of the VRA because moving from "a state-based [vote] to a national popular vote dilutes the voting strength of a given state's minority population by reducing its ability [voting power] to influence the outcome of presidential elections " Gringer also asserts that the NPV compact may violate Section 5 of the act  In 2013, however, the U S  Supreme Court invalidated Section 4(b) of the VRA, which contained a formula prescribing which states and jurisdictions with a history of discrimination were required to obtain prior approval or "preclearance" under Section 5 before changing any voting standard, practice, or procedure  Although the Court invalidated only the coverage formula in Section 4, by extension, Section 5 has been rendered currently inoperable  Prior to the Supreme Court ruling, Gringer argued that the NPV compact would qualify as a covered practice under Section 5, and that the legislatures of all the "covered" states would have been required to obtain preclearance before implementing the compact  Responding to this point, National Popular Vote Inc  noted the following: The National Popular Vote bill manifestly would make every person's vote for President equal throughout the United States in an election to fill a single office (the Presidency)  It is entirely consistent with the goal of the Voting Rights Act  There have been court cases under the Voting Rights Act concerning contemplated changes in voting methods for various representative legislative bodies     However, these cases do not bear on elections to fill a single office (i e , the Presidency)  In 2012, the Justice Department's Civil Rights Division specifically declined to challenge California's accession to the NPV compact on VRA grounds  The states' authority to appoint electors by any method their legislatures choose is not absolute  Federal court decisions have struck down state laws concerning appointment of electors that were found to be in violation of the Fourteenth Amendment's guarantee of equal protection: Although Clause 2 (of Article II, Section 1 of the Constitution) seemingly vests complete discretion in the states, certain older cases had recognized a federal interest in protecting the integrity of the process  Thus, the Court upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector     [I]n Oregon v  Mitchell (42 U S  112 (1970)), the Court upheld the power of Congress to reduce the voting age in presidential elections and to set a thirty-day durational residency period as a qualification for voting in presidential elections  Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v  Rhodes , (393 U S  20 1968)) is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment may override state practices that violate that Amendment and may substitute standards of its own  Critics of the electoral college system have sought direct election of the President and Vice President without success for more than two centuries  The NPV initiative represents a novel effort to achieve this goal by use of an interstate compact that would circumvent the stringent requirements necessary for the proposal and ratification of constitutional amendments  Since its inception in 2006, NPV has achieved a degree of success: 14 states and the District of Columbia, controlling a total of 189 electoral votes, have joined the compact since 2008  Progress has arguably been sporadic, however, notwithstanding active campaigning by National Popular Vote Inc  Over the course of more than a decade, NPV has heretofore failed to develop a sustained momentum toward its stated goal of states controlling 270 electoral votes  The action of three states in joining NPV to date in 2019 marks the most activity in a single year since 2008; it remains to be seen whether this trend will continue  To date, certain Democratic-leaning states have joined the compact  The arguable lack of support in Republican-controlled state legislatures raises questions about further accessions to the compact in the immediate future, particularly given the fact that the GOP controlled both legislative chambers in 30 states following the 2018 elections  To date, while the NPV initiative has generated interest among supporters of direct popular election of the President, it does not appear to have gained widespread awareness among the public at large  The findings of the March 27, 2019, Politico/Morning Consult survey cited earlier in this report arguably suggest that greater public knowledge of NPV might spur popular support for the compact  This might then contribute to further momentum if additional states were to join, particularly populous ones like Florida (29 electoral votes), Georgia (16 electoral votes), and Ohio (18 electoral votes) where the compact was under active consideration in 2019  Under these circumstances, proponents might be energized and encouraged by a sense of progress for the initiative  At the same time, NPV opponents could be expected to coalesce around the issues identified earlier in this report, and renew and increase their efforts in defense of the electoral college system  The activities of both might ultimately bring the NPV initiative to the more immediate attention of Congress 

ground_truth: Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment at educational institutions. It bars discrimination "on the basis of sex" in an educational program or activity receiving federal funding. Although Title IX makes no explicit reference to sexual harassment or abuse, the Supreme Court and federal agencies have determined that such conduct can sometimes constitute discrimination in violation of the statute; educational institutions in some circumstances can be held responsible when a teacher sexually harasses a student or when one student harasses another. Title IX is mainly enforced (1) through private rights of action brought directly against schools by or on behalf of students subjected to sexual misconduct; and (2) by federal agencies that provide funding to educational programs. To establish liability in a private right of action, a party seeking damages for a Title IX violation must satisfy the standards set forth by the Supreme Court in Gebser v. Lago Vista Independent School District, decided in 1998, and Davis Next Friend LaShonda D. v. Monroe County Board of Education, decided the next year. Gebser provides that when a teacher commits harassment against a student, a school district is liable only when it has actual knowledge of allegations by an "appropriate person," and so deficiently responds to those allegations that its response amounts to deliberate indifference to the discrimination. Davis instructs that, besides showing actual knowledge by an appropriate person and deliberate indifference, a plaintiff suing for damages for sexual harassment committed by a student must show that the conduct was "so severe, pervasive, and objectively offensive" that it denied the victim equal access to educational opportunities or benefits. Taken together, the Supreme Court's decisions set forth a high threshold for a private party seeking damages against an educational institution based on its response to sexual harassment. In turn, federal appellate courts have differed in how to apply the standards set in Gebser and Davis, diverging on the nature and amount of evidence sufficient to support a claim. In each of the last several presidential administrations, the Department of Education (ED) issued a number of guidance documents that instruct schools on their responsibilities under Title IX when addressing allegations of sexual harassment. These documents—while sometimes subject to change—generally reflected a different standard than the Supreme Court case law addressing private rights of action for damages for sexual abuse or harassment (the Court in Davis acknowledged that the threshold for liability in a private right of action could be higher than the standard imposed in the administrative enforcement context). Those guidance documents had, among other things, established that sometimes a school could be held responsible for instances of sexual harassment by a teacher, irrespective of actual notice; and schools could be held responsible for student-on-student harassment if a "responsible employee" knew or should have known of the harassment (constructive notice). ED's previous guidance also instructed educational institutions that they sometimes could be responsible for responding to incidents of sexual harassment occurring off campus. ED also cautioned schools on the use of mediation to resolve allegations of sexual harassment. With regard to the procedures used by schools to resolve sexual harassment allegations, ED informed schools that they must use the preponderance of the evidence standard to establish culpability, and the agency strongly discouraged schools from allowing parties in a hearing to personally cross-examine one another. In response to guidance from ED, as well as increased oversight from the department's Office for Civil Rights (OCR) between 2011 and 2016, schools developed several procedures to ensure that their responses to allegations of sexual harassment and assault complied with Title IX. A number of students faced with disciplinary action by public universities raised constitutional challenges to the Title IX procedures used to find them responsible for sexual misconduct, arguing that universities violated the Due Process Clause in handling their case. ED issued a notice of proposed rulemaking in late 2018, after revoking some of its previous guidance to schools in 2017. The proposed regulations would, in several ways, tether the administrative requirements for schools to the standard set by the Supreme Court in Gebser and Davis. In doing so, the proposed regulations would depart from the standards set by ED in previous guidance documents (some of which have since been rescinded). The new regulations would require "actual notice," rather than constructive notice, of harassment by an education institution to trigger a school's Title IX responsibilities, and provide that a school's response to allegations of sexual harassment will violate Title IX only if it amounts to deliberate indifference. In addition, the new regulations would more narrowly define what conduct qualifies as sexual harassment under Title IX, and also impose new procedural requirements, which appear to reflect due process concerns, when schools investigate sexual harassment or assault allegations and make determinations of culpability.

prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 2.



Report 2: The Secret Service plays a critical role in protecting the President, Vice President, their immediate families, and national leaders, among others  In addition, the component is responsible for safeguarding the nation’s currency and financial payment systems  To accomplish its mission, Secret Service officials reported that, as of June 2018, the component had approximately 7,100 employees (including the Uniformed Division, special agents, and administrative, professional, and technical staff)  These employees were assigned to the component’s headquarters in Washington, D C , and 133 field offices located throughout the world (including 115 domestic offices and 18 international offices)  The Secret Service’s employees are heavily dependent on the component’s IT infrastructure and communications systems to perform their daily duties  According to data reported on the Office of Management and Budget’s IT Dashboard, the component planned to spend approximately $104 8 million in fiscal year 2018 to modernize and maintain its IT environment  To manage this IT environment, the Secret Service hired a full-time CIO in November 2015  In addition, in an effort to improve its management structure, the component consolidated all IT staff and assets under this new CIO in March 2017  OCIO officials stated that these staff include the government employees who provide direct and indirect support of the day-to-day operations of the Secret Service’s enterprise systems and services  According to Secret Service officials, the component’s IT workforce included 190 staff, as of July 2018  These officials stated that 166 of these employees were located in the component’s headquarters in Washington, D C , and 24 were located in domestic field offices  The officials also reported that these July 2018 staffing levels were below their current approved staffing level of 220 staff (which included 44 positions in domestic field offices)  Secret Service IT staff also deploy to other locations, as necessary, to provide support for certain security activities  For example, the Secret Service reported that, in 2017, OCIO deployed over 79 staff to New York, N Y , to provide communications support during the United Nations General Assembly  As a component of DHS, the Secret Service must follow the department’s policies and processes for managing acquisitions, including IT acquisitions  DHS categorizes its acquisition programs according to three levels that are determined by the life cycle costs of the programs  These levels then determine the extent of required program and project management and the acquisition decision authority (the individual responsible for management and oversight of the acquisition)  The department also categorizes its acquisition programs as major or non- major based on expected cost  Table 1 describes the levels of DHS’s acquisition programs and their associated acquisition decision authorities  DHS’s policies and processes for managing major acquisition programs are primarily set forth in its Acquisition Management Directive 102-01 and Acquisition Management Instruction 102-01-001  In particular, these policies establish that a major acquisition program’s decision authority is to review the program at a series of predetermined acquisition decision events to assess whether the program is ready to proceed through the acquisition life cycle phases  Figure 1 depicts the acquisition life cycle established in DHS acquisition management policy  DHS’s Acquisition Management Directive and Instruction do not establish an acquisition life cycle framework for the department’s non-major acquisition programs  Instead, according to the Instruction, Component Acquisition Executives (i e , the senior acquisition official within a component that is responsible for implementation, management, and oversight of the component’s acquisition process) are required to establish component-specific non-major acquisition policies and guidance that support the “spirit and intent” of the department’s acquisition policies  To that end, the Secret Service developed a policy that establishes an acquisition life cycle framework for its non-major acquisition programs  This acquisition framework for the component’s non-major acquisition programs is consistent with the acquisition framework that DHS established for its major acquisition programs  In particular, the Secret Service’s framework includes the same phases and decision events as DHS’s framework (e g , acquisition decision event 2A, the point at which the acquisition decision authority determines whether a program may proceed into the obtain phase)  In addition, DHS’s Systems Engineering Life Cycle Instruction and Guidebook outline a framework of major systems engineering activities and technical reviews that are to be conducted by all DHS programs and projects, both major and non-major  This framework is intended to ensure that appropriate systems engineering activities are planned and implemented, and that a program’s development effort is meeting the business need  In particular, the systems engineering life cycle framework consists of nine major activities (e g , requirements definition, integration, and testing) and a set of related technical reviews (e g , preliminary design review) and artifacts (e g , requirements documents)  DHS policy allows programs to tailor these activities, technical reviews, and artifacts based on the unique characteristics of the program (e g , scope, complexity, and risk)  For example, a program may combine systems engineering technical reviews and artifacts, or add additional reviews  This tailored approach must be documented in a program’s systems engineering life cycle tailoring plan  The systems engineering technical reviews are intended to provide DHS the opportunity to determine how well a program has completed the necessary systems engineering activities  Each technical review includes a minimum set of exit criteria that must be satisfied before a program may move on to the next systems engineering activity  At the end of the technical review, the program manager must develop a technical review completion letter that documents the outcome of the review, including stakeholder concurrence that the exit criteria were satisfied  Moreover, DHS’s agile instruction, which was first issued in April 2016 and updated in April 2018, identifies agile as the preferred development approach for the department’s IT programs and projects  Agile is a type of incremental (i e , modular) development, which calls for the rapid delivery of software in small, short increments rather than in the typically long, sequential phases of a traditional waterfall approach  DHS’s agile instruction also states that component CIOs are to set modular (i e , incremental) outcomes and target measures to monitor progress in achieving agile implementation for IT programs and projects  To that end, the department identified core metrics that its agile IT programs are to use to monitor progress, including the number of story points completed per release and the number of releases per quarter  Further, DHS policy and guidance have established an acquisition (i e , contract) review process that is intended to enable the DHS CIO to review and effectively guide the department’s IT expenditures  According to the department’s IT acquisition review guidance, DHS components with a CIO (which includes the Secret Service) are to submit to DHS OCIO for review, IT acquisitions that (1) have total estimated procurement values of $2 5 million or more; and (2) are funded by a level 1, 2, or 3 program with a life cycle cost estimate of at least $50 million (i e , a major investment, as defined by DHS’s capital planning and investment control guidance)  DHS policies and guidance also establish numerous responsibilities for the department’s component-level CIOs that are aimed at ensuring proper oversight and management of the components’ IT investments  Among other things, these component-level CIO responsibilities relate to topics such as IT budgeting, portfolio management, and oversight of programs’ systems engineering life cycles  Table 2 identifies 14 selected IT oversight responsibilities for DHS’s component CIOs  The Secret Service acquires IT infrastructure and services that are intended to improve its ability to execute its investigation and protection missions  According to data reported on the Office of Management and Budget’s IT Dashboard, the Secret Service planned to spend about $104 8 million on IT in fiscal year 2018, which included approximately $34 6 million for the development and modernization of its IT infrastructure and services, and about $70 2 million for the operations and maintenance of this infrastructure (including 21 existing IT systems)  Also according to data reported on the IT Dashboard, as of April 2018, the Secret Service had one major IT investment (called the Information Integration and Technology Transformation and discussed in more detail later in this report), seven non-major IT investments, and one non- standard infrastructure investment  Figure 2 depicts the Secret Service’s planned IT spending for fiscal year 2018  The Secret Service has faced long-standing challenges in managing its IT infrastructure  For example, A National Security Agency audit of the Secret Service’s IT environment in 2008 identified network and system vulnerabilities that needed immediate remediation to protect the component’s systems and electronic information  The Secret Service determined in 2010 that it had IT capability gaps associated with three key areas: network security, information sharing and situational awareness, and operational communications  The component reported that it required a significant IT modernization effort with sustained investment of resources to replace dated and restrictive network and communications capabilities  The Secret Service also reported in 2010 that it had 42 mission- support applications that were operating on a 1980’s mainframe that lacked multi-level security (i e , the ability to view classified information from two security levels, such as secret and top secret, at the same time), was beyond its equipment life cycle, and was at risk of failing  Further, in 2011, DHS’s Office of Inspector General reported that the Secret Service’s existing infrastructure did not meet current operational requirements  According to the Secret Service, this dated infrastructure was unable to support newer technologies (e g , Internet protocol), share common DHS enterprise services, or migrate to the department’s consolidated data centers  To address challenges with its IT environment, in 2009, the Secret Service initiated the IITT investment, which is intended to modernize and enhance the component’s infrastructure, communications systems, applications, and processes  In particular, IITT is a portfolio of programs and projects that are meant to, among other things, improve systems availability in support of the Secret Service’s business operations, increase interoperability with other government systems and networks, enhance the component’s system and network security, and enable scalability to support growth  From 2010 to July 2018, according to OCIO officials, the Secret Service spent approximately $392 million on IITT  In fiscal year 2018, the component had planned to spend approximately $42 7 million on IITT (i e , about 40 percent of its total planned IT spending for the fiscal year), according to data reported on the Office of Management and Budget’s IT Dashboard  In total, the planned life cycle cost estimate for IITT is at least $811 million  As of June 2018, IITT was a major investment comprised of two programs (one of which included three projects) and one standalone project (i e , it was not part of another program) that had capabilities that were in planning or development and modernization  These programs and project were the Enabling Capabilities program, Enterprise Resource Management System program (which included three projects that were each being implemented using an agile methodology: Uniformed Division Resource Management System, Events Management, and Enterprise-wide Scheduling), and the Multi-Level Security project  Table 3 describes the IITT programs and projects that had capabilities that were in planning or development and modernization, as of June 2018  The table also includes the associated level, acquisition decision authority, estimated life cycle costs, and planned or actual dates of operational capability for each of the programs and projects  (Appendix II also provides additional information on these programs and projects ) The Enabling Capabilities program within IITT is designated as a major acquisition program  As such, its acquisition decision authority is the DHS Under Secretary for Management, and both DHS and the Secret Service provide oversight to this program  IITT’s other program and project—the Enterprise Resource Management System program (which includes three projects, as discussed earlier) and Multi-Level Security project—are designated non-major acquisition programs  In June 2011, DHS’s Under Secretary for Management delegated acquisition decision authority for this non-major program and project to the Secret Service Component Acquisition Executive  As such, oversight of the Enterprise Resource Management System program (including its three projects) and the Multi- Level Security project is conducted primarily at the component level  The Secret Service also implemented other capabilities that are now in operations and maintenance (i e , the capabilities have been fielded and are operational) as part of the IITT investment, such as a capability to move data between systems in separate classification levels (e g , top secret and secret) and communications interoperability  Table 4 describes IITT capabilities that are in operations and maintenance  DHS, including the Secret Service, has faced long-standing challenges in effectively managing its workforce  In January 2003, we designated the implementation and transformation of DHS as high risk, including its management of human capital, because it had to transform 22 agencies—several with major management challenges—into one department  This represented an enormous and complex undertaking that would require time to achieve in an effective and efficient manner  Since that time, the department has made important progress in strengthening and integrating its management functions  Nevertheless, we have continued to report that significant work remains for DHS to improve these management functions  Among other things, we previously reported that the department had lower average employee morale than the average for the rest of the federal government  We also reported that, in 2011, based on employee responses to the Office of Personnel Management’s Federal Employee Viewpoint Survey—a tool that measures employees’ perceptions of whether and to what extent conditions characterizing successful organizations are present in their agency—DHS was ranked 31st out of 33 large agencies on the Partnership for Public Service’s Best Places to Work in the Federal Government rankings  The most recent results of these surveys in 2017 showed that DHS continues to maintain its low rankings  DHS’s Office of Inspector General has reported on challenges that the Secret Service has faced in managing its IT workforce  Specifically, in October 2016, the Inspector General reported that the Secret Service CIO did not have oversight of, or authority over, all IT resources, including the workforce; in particular, almost all of the component’s IT employees were located in a division outside of OCIO; and the Secret Service had vacancies in key positions responsible for managing IT, including not having a full-time CIO from December 2014 through November 2015  As previously discussed, the Secret Service has taken actions to address these two issues with the management of its IT workforce  These actions included hiring its full-time CIO in November 2015 and consolidating the workforce and all IT assets under this CIO in March 2017  Of the 14 selected responsibilities established for component-level CIOs in DHS’s IT management policies, the Secret Service CIO had fully implemented 11 responsibilities and had partially implemented 3 responsibilities  Table 5 summarizes the extent to which the Secret Service CIO had implemented each of the 14 responsibilities  The Secret Service CIO fully implemented 11 of the 14 selected component-level CIO responsibilities  Examples of the responsibilities that the CIO fully implemented are as follows: Develop, implement, and maintain a detailed IT strategic plan  Consistent with DHS’s IT Integration and Management directive, in January 2017, the Secret Service CIO developed an IT strategic plan that outlined the CIO’s strategic IT goals and objectives, as well as tasks intended to meet the goals and objectives  The CIO maintained this strategic plan, to include updating it in January 2018  The CIO also took steps to implement the tasks identified within the strategic plan, such as working to develop an IT training program  In particular, as part of this effort to develop an IT training program, OCIO identified recommended training for the office’s various IT workforce groups (discussed in more detail later in this report)  Concur with each program’s and/or project’s systems engineering life cycle tailoring plan  In accordance with DHS’s Systems Engineering Life Cycle instruction, the Secret Service CIO concurred with the systems engineering life cycle tailoring plan for one program and three projects included in the Secret Service’s IITT investment  Specifically, the CIO documented his approval via his signature on the tailoring plans for IITT’s Enabling Capabilities program, and Multi-Level Security, Uniformed Division Resource Management System, and Events Management projects  Participate on DHS’s CIO Council, Enterprise Architecture Board, or other councils/boards as appropriate, and appoint employees to serve when necessary  As required by DHS’s IT Integration and Management directive, the Secret Service CIO participated on two required DHS-level councils/boards, and appointed a delegate to serve in his place, when necessary  Specifically, the Secret Service CIO or the CIO’s delegate—the Deputy CIO—attended bi-monthly meetings of the DHS CIO Council  In addition, another Secret Service CIO appointee—the component’s Chief Architect—attended an ad hoc meeting of the Enterprise Architecture Board in June 2017  In addition, the Secret Service CIO had partially implemented three component-level CIO responsibilities, as follows  Manage the component IT investment portfolio, including establishing a component-level IT acquisition review process that enables component and DHS review of component acquisitions (i e , contracts) that contain IT  As directed in DHS’s Capital Planning and Investment Control directive and guidebook, the Secret Service CIO took steps to manage the component’s IT investment portfolio, including reviewing certain contracts containing IT  For example, among our random sample of 33 IT contracts that the Secret Service awarded between October 1, 2016, and June 30, 2017, we found that the CIO or the CIO’s delegate had reviewed 31 of these contracts  However, the CIO had not established and documented a defined process for reviewing contracts containing IT, which may have contributed to why the CIO or the CIO’s delegate did not review 2 of the 33 contracts in our sample  OCIO officials were unable to explain why neither of these officials reviewed the 2 contracts, which had a combined planned total procurement value of approximately $1 75 million  In particular, one of the contracts, with a planned total procurement value of about $1,122,934, was to provide credentialing services for the 2017 Presidential Inauguration  The other contract, with a planned total procurement value of about $629,337, was to provide maintenance support for a logistics system  The OCIO officials acknowledged that both contracts should have been approved by one of these officials  Without establishing and documenting an IT acquisition review process that ensures that the CIO or the CIO’s delegate reviews all contracts containing IT, as appropriate, the CIO’s ability to analyze the contracts to ensure that they are a cost-effective use of resources and are aligned with the component’s missions and goals is limited  Ensure all component IT policies are in compliance and alignment with DHS IT directives and instructions  As required by DHS’s IT Integration and Management directive, the Secret Service CIO had ensured that certain component IT policies were in compliance and alignment with DHS IT directives and instructions  For example, in alignment with the department’s IT Integration and Management directive, the Secret Service’s Investment Governance for IT policy specifies that the component CIO (in conjunction with each Secret Service Office) is responsible for developing the component IT spend plan, as well as developing and maintaining an IT strategic plan  However, the Secret Service’s enterprise governance policy was not in compliance with DHS’s IT Integration and Management directive  Specifically, while the department’s policy states that the Secret Service CIO is responsible for developing and reviewing the component’s IT budget formulation and execution, the Secret Service’s enterprise governance policy does not specify this as the CIO’s responsibility  According to OCIO officials, the Secret Service CIO participates in the development and review of the IT budget formulation and execution as a member of the Executive Resources Board (the Secret Service’s highest-level governing body, which has the final decision authority and responsibility for enterprise governance), and the Secret Service Deputy CIO is a voting member of the Enterprise Governance Council (the Secret Service’s second-level governance body and advisory council to the Executive Resources Board)  However, the Secret Service’s enterprise governance policy has not been updated to reflect these roles  The Secret Service did not update its enterprise governance policy to properly reflect the CIO’s and Deputy CIO’s roles on the Executive Resources Board or Enterprise Governance Council because OCIO officials were not aware that these roles were not properly documented in the component’s policy until we identified this issue during our review  Further compounding the issue of the Secret Service’s enterprise governance policy not properly reflecting the CIO’s and Deputy CIO’s roles and responsibilities on the component’s governance boards is that the Secret Service has not developed a charter for its Executive Resources Board  We have previously reported that a best practice for effective investment management is to define and document the board’s membership, roles, and responsibilities  One such way to do so is via a charter  According to Secret Service officials, the component does not have a charter for the board because, while the Secret Service has established the board pursuant to law, there is little statutory guidance on how the board must be formalized, including whether a charter is required  The officials acknowledged that development of a board charter is a best practice  They stated that, in response to our review, the component has begun efforts to develop a charter for the Executive Resources Board, but they did not know when it would be completed  Until the Secret Service updates its enterprise governance policy to specify (1) the CIO’s current role and responsibilities on the Executive Resources Board, to include developing and reviewing the IT budget formulation and execution, and (2) the Deputy CIO’s role and responsibilities on the Enterprise Governance Council, the CIO’s ability to develop and review the component’s IT budget may be limited  Further, until the Secret Service develops a charter for its Executive Resources Board that specifies the roles and responsibilities of all board members, including the CIO, the Secret Service will not be effectively positioned to ensure that all members understand their roles and responsibilities on the board and will perform them as expected  Set modular outcomes and target measures to monitor the progress in achieving agile implementation for IT programs and/or projects within their component  Consistent with DHS policy, the Secret Service CIO has set modular outcomes and target measures to monitor the progress of two IITT projects that the component is implementing using an agile methodology—Uniformed Division Resource Management System and Events Management  For example, the modular outcomes set for these projects included measuring planned and actual burndown (i e , the number of user stories completed)  In addition, the projects were to measure their velocity (i e , the rate of work completed) for each sprint (i e , a set period of time during which the development team is expected to complete tasks related to developing a piece of working software)  However, the modular outcomes and target measures did not include product quality or post-deployment user satisfaction, although such measures are leading practices for managing agile projects  According to Secret Service OCIO officials, the component does not mandate the specific metrics that its agile projects are to use; instead, each project is to determine the metrics based on stakeholder requirements and unique project characteristics  The officials further stated that these metrics are to be documented in an acquisition program baseline and program management plan; this baseline and program management plan are then to be approved by the CIO  To its credit, the component’s one agile project that, as of May 2018, had deployed its system to users—the Uniformed Division Resource Management System—did measure product quality  OCIO officials also stated that they regularly receive verbal, undocumented feedback from users on the system and they plan to conduct a documented user satisfaction survey on this system by September 2018  Nevertheless, without ensuring that product quality and post- deployment user satisfaction metrics are included in the modular outcomes and target measures that the CIO sets for monitoring agile projects, the Secret Service lacks assurance that the Events Management project or other future agile projects will measure product quality or post-deployment user satisfaction  Without guidance specifying that agile projects track these metrics, the projects may not do so and the CIO may be limited in his knowledge of the progress being made on these projects  Workforce planning and management is essential for ensuring that federal agencies have the talent, skill, and experience mix they need to execute their missions and program goals  To help agencies effectively conduct workforce planning and management, the Office of Personnel Management, the Chief Human Capital Officers Council, DHS, the Secret Service, and we have identified numerous leading practices related to five workforce areas: strategic planning, recruitment and hiring, training and development, employee morale, and performance management  Table 6 identifies the five workforce areas and 15 selected leading practices associated with these areas (3 practices within each area)  Of the five selected workforce planning and management areas, the Secret Service had substantially implemented two of the areas and minimally implemented three of the areas for its IT workforce  In addition, of the 15 selected leading practices associated with these workforce planning and management areas, the Secret Service had fully implemented 3 practices, partly implemented 8 practices, and did not implement any aspects of 4 practices  Table 7 summarizes the extent to which the Secret Service had implemented for its IT workforce the five selected workforce planning and management areas and 15 selected leading practices associated with those areas, as of June 2018  Strategic workforce planning is an essential activity that an agency needs to conduct to ensure that its human capital program aligns with its current and emerging mission and programmatic goals, and that the agency is able to meet its future needs  We previously identified numerous leading practices related to IT strategic workforce planning, including that an organization should (1) establish and maintain a strategic workforce planning process, including developing all competency and staffing needs; (2) regularly assess competency and staffing needs, and analyze the IT workforce to identify gaps in those areas; and (3) develop strategies and plans to address gaps in competencies and staffing  The Secret Service minimally implemented the three selected leading practices associated with the IT strategic workforce planning area  Specifically, the component partly implemented two of the practices and did not implement one practice  Table 8 lists these selected leading practices and provides our assessment of the Secret Service’s implementation of the practices  Establish and maintain a strategic workforce planning process, including developing all competency and staffing needs—partly implemented  The Secret Service took steps to establish a strategic workforce planning process for its IT workforce  For example, the Secret Service CIO developed and maintained a plan that identified strategic workforce planning tasks, to include analyzing the staffing requirements of the IT workforce  In addition, the Secret Service defined general core competencies (e g , communication and customer service) for its workforce, including IT staff  However, OCIO did not identify all required knowledge and skills needed to support this office’s functions  In particular, while OCIO identified certain technical competencies that its IT workforce needs, such as cybersecurity, the office did not identify and document all of the technical competencies that it needs  OCIO officials stated that they did not identify and document the technical competencies that the office needs because the Secret Service was focused on reorganizing the IT workforce under a single, centralized reporting chain within the CIO’s office  Consequently, the officials stated that they had not completed the work to identify all required IT knowledge and skills necessary to support the office  Yet, the Secret Service completed the IT workforce reorganization effort over a year ago, in March 2017 and, since then, OCIO has not identified all of the required IT knowledge and skills that the office needs  OCIO officials told us that they plan to identify all of the technical competency needs for the IT workforce, but they were unable to specify a time frame for when these needs would be fully identified  Until OCIO identifies all of the required knowledge and skills for the IT workforce, the office will be limited in its ability to identify and address any competency gaps associated with this workforce  In addition, the Secret Service did not reliably determine the number of IT staff that it needs in order to support OCIO’s functions  Specifically, in January 2017, an independent review of the staffing model that the component used to identify its IT workforce staffing needs found that the model was not based on any verifiable underlying data  In late August 2018, Office of Human Resources officials reported that they had hired a contractor in early August 2018 to update the staffing model to improve the quality of the data  These officials expected the contractor to finish updating the model by August 2019  The officials plan to use the updated model to identify the Secret Service’s IT workforce staffing needs for fiscal year 2021  Updating the staffing model to incorporate verifiable workload data should increase the likelihood that the Secret Service is able to appropriately identify its staffing needs for its IT workforce  Regularly assess competency and staffing needs, and analyze the IT workforce to identify gaps in those areas—not implemented  The Secret Service regularly assessed the competency and staffing needs for 1 of the occupational series within its IT workforce (i e , the 2210 IT Specialist series)  However, it did not regularly assess the competency and staffing needs for the remaining 11 occupational series that are associated with the component’s IT workforce, nor identify any gaps that it had in those areas  OCIO officials stated that they had not assessed these needs or identified competency or staffing gaps because, among other things, the Secret Service was focused on reorganizing the IT workforce under a single, centralized reporting chain within the CIO’s office  However, as previously mentioned, the component completed this effort in March 2017, but OCIO did not subsequently assess its competency and staffing needs, nor identify gaps in those areas  OCIO officials reported that they plan to assess the competencies of the IT workforce to identify any gaps that may exist; however, they were unable to identify a specific date by which they expect to have the capacity to complete this assessment  Until OCIO regularly analyzes the IT workforce to identify its competency needs and any gaps it may have, OCIO will be limited in its ability to determine whether its IT workforce has the necessary knowledge and skills to meet its mission and goals  Further, Office of Human Resources officials reported that they plan to update the staffing model that they use to identify their IT staffing needs to include more reliable workload data  However, as discussed earlier, the Secret Service had not yet developed that updated model to determine its IT staffing needs  Office of Human Resources officials reported that once they update the staffing model they plan to re- evaluate the Secret Service’s IT staffing needs  The officials also stated that, going forward, they plan to reassess these needs each year as part of the annual budget cycle  Regular assessments of the IT workforce’s staffing needs should increase the likelihood that the Secret Service is able to appropriately identify the number of IT staff it needs to meet its mission and programmatic goals  Develop strategies and plans to address gaps in competencies and staffing—partly implemented  The Secret Service developed recruiting and hiring strategies to address certain competency and staffing needs (e g , cybersecurity) for its IT workforce  These strategies included, among other things, participating in DHS-wide recruiting events and using special hiring authorities  However, because OCIO did not identify all of its IT competency and staffing needs, and lacked a current analysis of its entire IT workforce, the Secret Service could not provide assurance that the recruiting and hiring strategies it developed were specifically targeted towards addressing current OCIO competency and staffing gaps  For example, without an analysis of the IT workforce’s skills, OCIO did not know the extent to which it had gaps in areas such as device management and cloud computing  As a result, the Secret Service’s recruiting strategies may not have been targeted to address any gaps in those areas  Until the Secret Service updates its recruiting and hiring strategies and plans to address all IT competency and staffing gaps identified (after OCIO completes its analysis of the entire IT workforce, as discussed earlier), the Secret Service will be limited in its ability to effectively recruit and hire staff to fill those gaps  According to the Office of Personnel Management, the Chief Human Capital Officers Council, and our prior work, once an agency has determined the critical skills and competencies that it needs to achieve programmatic goals, and identifies any competency or staffing gaps in its current workforce, the agency should be positioned to build effective recruiting and hiring programs  It is important that an agency has these programs in place to ensure that it can effectively recruit and hire employees with the appropriate skills to meet its various mission requirements  The Office of Personnel Management, the Chief Human Capital Officers Council, and we have also identified numerous leading practices associated with effective recruitment and hiring programs  Among these practices, an agency should (1) implement recruiting and hiring activities to address skill and staffing gaps by using the strategies and plans developed during the strategic workforce planning process; (2) establish and track metrics to monitor the effectiveness of the recruitment program and hiring process, including their effectiveness at addressing skill and staffing gaps, and report to agency leadership on progress addressing those gaps; and (3) adjust recruitment plans and hiring activities based on recruitment and hiring effectiveness metrics  The Secret Service minimally implemented the selected three leading practices associated with the recruitment and hiring workforce area  Specifically, the component partly implemented one of the three practices and did not implement the other two practices  Table 9 lists these selected practices and provides our assessment of the Secret Service’s implementation of the practices  Implement recruiting and hiring activities to address skill and staffing gaps by using the strategies and plans developed during the strategic workforce planning process—partly implemented  OCIO officials implemented the activities identified in the Secret Service’s recruiting and hiring plans  For example, as identified in its recruiting plan, OCIO participated in a February 2017 career fair to recruit job applicants at a technology conference  In addition, in August 2017, OCIO participated in a DHS-wide recruiting event  Secret Service officials reported that, during this event, they conducted four interviews for positions in OCIO  However, as previously discussed, OCIO did not identify all of its IT competency and staffing needs, and lacked a current analysis of its entire IT workforce  Without complete knowledge of its current IT competency and staffing gaps, the Secret Service could not provide assurance that the recruiting and hiring strategies that it had implemented fully addressed these gaps  Establish and track metrics to monitor the effectiveness of the recruitment program and hiring process, including their effectiveness at addressing skill and staffing gaps, and report to agency leadership on progress addressing those gaps—not implemented  The Secret Service had not established and tracked metrics for monitoring the effectiveness of its recruitment and hiring activities for the IT workforce  Officials in the Office of Human Resources attributed this to staffing constraints and said their priority was to address existing staffing gaps associated with the Secret Service’s law enforcement groups  In June 2018, Office of Human Resources officials stated that they plan to implement metrics to monitor the effectiveness of the hiring process for the IT workforce by October 2018  The officials also stated that they were in the process of determining (1) the metrics that are to be used to monitor the effectiveness of their workforce recruiting efforts and (2) whether they need to acquire new technology to support this effort  However, the officials did not know when they would implement the metrics for assessing the effectiveness of the recruitment activities and whether they would report the results to leadership  Until the Office of Human Resources (1) develops and tracks metrics to monitor the effectiveness of the Secret Service’s recruitment activities for the IT workforce, including their effectiveness at addressing skill and staffing gaps; and (2) reports to component leadership on those metrics, the Secret Service and the Office of Human Resources will be limited in their ability to analyze the recruitment program to determine whether the program is effectively addressing IT skill and staffing gaps  Further, Secret Service leadership will lack the information necessary to make effective recruitment decisions  Adjust recruitment plans and hiring activities based on recruitment and hiring effectiveness metrics—not implemented  While the Secret Service CIO stated in June 2018 that he planned to adjust the office’s recruiting and hiring strategies to focus on entry- level staff rather than mid-career employees, this planned adjustment was not based on metrics that the Secret Service was tracking  Instead, the CIO stated that he planned to make this change because his office determined that previous mid-career applicants were often unwilling or unable to wait for the Secret Service’s lengthy, required background investigation process to be completed  However, as previously mentioned, the Secret Service did not develop and implement any metrics for assessing the effectiveness of the recruitment and hiring activities for the IT workforce  As a result, the Office of Human Resources and OCIO were not able to use such metrics to inform adjustments to their recruiting and hiring plan and activities, thus, reducing their ability to target potential candidates for hiring  Until the Office of Human Resources and OCIO adjust their recruitment and hiring plans and activities as necessary, after establishing and tracking metrics for assessing the effectiveness of these activities for the IT workforce, the Secret Service will be limited in its ability to ensure that its recruiting plans and activities are appropriately targeted to potential candidates  In addition, the component will lack assurance that these plans and activities will effectively address skill and staffing gaps within its IT workforce  An organization should invest in training and developing its employees to help ensure that its workforce has the information, skills, and competencies that it needs to work effectively  In addition, training and development programs are an integral part of a learning environment that can enhance an organization’s ability to attract and retain employees with the skills and competencies needed to achieve cost-effective and timely results  DHS, the Secret Service, and we have previously identified numerous leading training and development-related practices  Among those practices, an organization should (1) establish a training and development program to assist the agency in achieving its mission and goals; (2) use tracking and other control mechanisms to ensure that employees receive appropriate training and meet certification requirements, when applicable; and (3) collect and assess performance data (including qualitative or quantitative measures, as appropriate) to determine how the training program contributes to improved performance and results  The Secret Service minimally implemented the selected three leading practices associated with the training and development workforce area  Specifically, the component partly implemented two of the three practices and did not implement one practice  Table 10 lists these selected leading practices and provides our assessment of the Secret Service’s implementation of the practices  Establish a training and development program to assist the agency in achieving its mission and goals—partly implemented  OCIO was in the process of developing a training program for its IT workforce  For example, OCIO developed a draft training plan that identified recommended training for the office’s various IT workforce groups (e g , voice communications employees)  However, the office had not defined the required training for each IT workforce group  In addition, OCIO officials had not yet determined which activities they would implement as part of the training program (e g , soliciting employee feedback after training is completed and evaluating the effectiveness of specific training courses), nor did they implement those activities  OCIO officials stated that they had not yet fully implemented a training program because their annual training budget for fiscal year 2018 was not sufficient to implement such a program  However, resource constrained programs especially benefit from identifying and prioritizing training activities to inform training budget decisions  Until OCIO (1) defines the required training for each IT workforce group, (2) determines the activities that it will include in its IT workforce training and development program based on its available training budget, and (3) implements those activities, the office may be limited in its ability to ensure that the IT workforce has the necessary knowledge and skills for their respective positions  Use tracking and other control mechanisms to ensure that employees receive appropriate training and meet certification requirements, when applicable—partly implemented  OCIO used a training system to track that the managers for IITT’s programs had met certain certification requirements for their respective positions  In addition, OCIO manually tracked the technical training that certain IT staff took  However, as discussed earlier, OCIO did not define the required training for each IT workforce group  As such, the office was unable to ensure that IT staff received the appropriate training relevant to their respective positions  Until it ensures that IT staff complete training specific to their positions (after defining the training required for each workforce group), OCIO will have limited assurance that the workforce has the necessary knowledge and skills  Collect and assess performance data (including qualitative or quantitative measures, as appropriate) to determine how the training program contributes to improved performance and results—not implemented  As previously discussed, OCIO did not fully implement a training program for the IT workforce; as such, the office was unable to collect and assess performance data related to such a program  OCIO officials stated that, once they fully implement a training program, they intend to collect and assess data on how this program contributes to improved performance  However, the officials were unable to specify a time frame for when they would do so  Until OCIO collects and assesses performance data (including qualitative or quantitative measures, as appropriate) to determine how the IT training program contributes to improved performance and results (once the training program is implemented), the office may be limited in its knowledge of whether the training program is contributing to improved performance and results  Employee morale is important to organizational performance and an organization’s ability to retain talent to perform its mission  We have previously identified numerous leading practices for improving employee morale  Among other things, we have found that an organization should (1) determine root causes of employee morale problems by analyzing employee survey results using techniques such as comparing demographic groups, benchmarking against similar organizations, and linking root cause findings to action plans; and develop and implement action plans to improve employee morale; (2) establish and track metrics of success for improving employee morale, and report to agency leadership on progress improving morale; and (3) maintain leadership support and commitment to ensure continued progress in improving employee morale, and demonstrate sustained improvement in morale  With regard to its IT workforce, the Secret Service substantially implemented the selected three practices associated with the employee morale workforce area  Specifically, the component fully implemented two of the selected practices and partly implemented one practice  Table 11 lists these selected practices and provides our assessment of the Secret Service’s implementation of the practices  Determine root causes of employee morale problems by analyzing employee survey results using techniques such as comparing demographic groups, benchmarking against similar organizations, and linking root cause findings to action plans  Develop and implement action plans to improve employee morale—fully implemented  The Secret Service used survey analysis techniques to determine the root causes of its low employee morale, on which we have previously reported  For example, the component conducted a benchmarking exercise where it compared the morale of the Secret Service’s employees, including IT staff, to data on the morale of employees at other agencies, including the U S  Capitol Police, U S  Coast Guard, and the Drug Enforcement Administration  As part of this exercise, the Secret Service also compared its employee work-life offerings (e g , on-site childcare and telework program) to those available at other agencies  In addition, the Secret Service developed and implemented action plans for improving employee morale  Among these action plans, for example, the component implemented a student loan repayment program and expanded its tuition assistance program’s eligibility requirements  Establish and track metrics of success for improving employee morale, and report to agency leadership on progress improving morale—fully implemented  The Secret Service tracked metrics for improving employee morale and reported the results to leadership  For example, the component tracked metrics on the percentage of the workforce, including IT staff, that participated in the student loan repayment and tuition assistance programs  In addition, the Chief Strategy Officer reported to the Chief Operating Officer the results related to meeting those metrics  Maintain leadership support and commitment to ensure continued progress in improving employee morale, and demonstrate sustained improvement in morale—partly implemented  Secret Service leadership developed and implemented initiatives that demonstrated their commitment to improving the morale of the Secret Service’s workforce  For example, since 2014, the Secret Service had worked with a contractor to identify ways to improve the morale of its entire workforce, including IT staff  However, as of June 2018, the Secret Service was unable to demonstrate that it had sustained improvement in the morale of the component’s IT staff  In particular, the component was only able to provide IT workforce-specific results from one employee morale assessment that was conducted subsequent to the consolidation of this workforce into OCIO in March 2017  These results were from an assessment conducted by the component’s Inspection Division in December 2017 (the assessment found that the majority of the Secret Service’s IT employees rated their morale as “very good” or “excellent ”) While the component also provided certain employee morale results from the Office of Personnel Management’s Federal Employee Viewpoint Survey in 2017, these results were not specific to the IT workforce  Instead, this workforce’s results were combined with those from staff in another Secret Service division  According to OCIO officials, the results were combined because, at the time of the survey, the IT workforce was administratively identified as being part of that other division  OCIO officials stated that, going forward, they plan to continue to assess the morale of the IT workforce on an annual basis as part of the Federal Employee Viewpoint Survey  In addition, the officials stated that OCIO-specific results may be available as part of the 2018 survey results, which the officials expect to receive by September 2018  By measuring employee satisfaction on an annual basis, the Secret Service should have increased knowledge of whether its initiatives that are aimed at improving employee morale are in fact increasing employee satisfaction  Agencies can use performance management systems as a tool to foster a results-oriented organizational culture that links individual performance to organizational goals  We have previously identified numerous leading practices related to performance management that are intended to enhance performance and ensure individual accountability  Among the performance management practices, agencies should (1) establish a performance management system that differentiates levels of staff performance and defines competencies in order to provide a fuller assessment of performance, (2) explicitly align individual performance expectations with organizational goals to help individuals see the connection between their daily activities and organizational goals, and (3) periodically provide individuals with regular performance feedback  The Secret Service substantially implemented the selected three leading practices associated with the performance management workforce area  Specifically, the component fully implemented one of the three practices and partly implemented the other two practices  Table 12 lists these selected leading practices and provides our assessment of the Secret Service’s implementation of the practices  Establish a performance management system that differentiates levels of staff performance and defines competencies in order to provide a fuller assessment of performance—partly implemented  The Secret Service’s performance management process requires leadership to make meaningful distinctions between levels of staff performance  In particular, the component’s performance plans for IT staff, which are developed by the Office of Human Resources and tailored by OCIO, as necessary, specify the criteria that leadership use to determine if an individual has met or exceeded the expectations associated with each competency identified in their respective performance plan  The performance plans include pre-established, department-wide competencies that are set by DHS, as well as occupational series-specific goals that may be updated by the Secret Service  However, because OCIO did not fully define and document all of its technical competency needs for the IT workforce, as discussed earlier, the Secret Service’s performance plans for IT staff did not include performance expectations related to the full set of technical competencies required for their respective positions  In addition, because OCIO officials were unable to specify a time frame for when they will identify all of the technical competency needs for the IT workforce (as previously discussed), the officials were also unable to specify a time frame for when they would update the IT workforce’s performance plans to include those relevant technical competencies  Until OCIO updates the performance plans for each occupational series within the IT workforce to include the relevant technical competencies, once identified, against which IT staff performance should be assessed, the office will be limited in its ability to provide IT staff with a complete assessment of their performance  In addition, Secret Service management will have limited knowledge of the extent to which IT staff are meeting all relevant technical competencies  Explicitly align individual performance expectations with organizational goals to help individuals see the connection between their daily activities and organizational goals—partly implemented  The Secret Service’s performance plans for IT staff identified certain goals that appeared to be related to organizational goals and objectives  For example, the performance plan for the Telecommunications Specialist occupational series (which is one of the series included in OCIO’s IT workforce) identified a goal for staff to support the voice, wireless, radio, satellite, and video systems serving the Secret Service’s protective and investigative mission  This performance plan goal appeared to be related to the component’s strategic goal on Advanced Technology, which included an objective to create the infrastructure needed to fulfill mission responsibilities  However, the Secret Service was unable to provide documentation that explicitly showed how individual employee performance links to organizational goals, such as a mapping of the goals identified in employee performance plans to organizational goals  Specifically, while Office of Human Resources officials stated that each Secret Service directorate is responsible for ensuring that employee goals map to high-level organizational goals, OCIO officials stated that they did not complete this mapping  The officials were unable to explain why they did not align the goals in their employees’ performance plans to the component’s high-level goals  According to the officials, the Secret Service is in the process of implementing a new automated tool that will require each office to explicitly align individual performance expectations to organizational goals  The officials stated that OCIO plans to use this tool to create employees’ fiscal year 2019 performance plans  By explicitly demonstrating how individual performance expectations align with organizational goals, the Secret Service’s IT staff should have a better understanding of how their daily activities contribute towards achieving the Secret Service’s goals  Periodically provide individuals with regular performance feedback—fully implemented  Secret Service leadership periodically provided their IT staff with performance feedback  Specifically, on an annual basis, OCIO staff received feedback during a mid-year and end-of-year performance feedback assessment  In our prior work, we have stressed that candid and constructive feedback can help individuals maximize their contribution and potential for understanding and realizing the goals and objectives of an organization  Further, this feedback is one of the strongest drivers of employee engagement  According to leading practices of the Software Engineering Institute, effective program oversight includes monitoring program performance and conducting reviews at predetermined checkpoints or milestones  This is done by, among other things, comparing actual cost, schedule, and performance data with estimates in the program plan and identifying significant deviations from established targets or thresholds for acceptable performance levels  In addition, the Software Engineering Institute previously identified leading practices for effectively monitoring the performance of agile projects  According to the Institute, agile development methods focus on delivering usable, working software frequently; as such, it is important to measure the value delivered during each iteration of these projects  To that end, the Institute reported that agile projects should be measured on velocity (i e , number of story points completed per sprint or release), development progression (e g , the number of user stories planned and accepted), product quality (e g , number of defects), and post-deployment user satisfaction  DHS and the Secret Service had fully implemented the selected leading practice for monitoring the performance of one program and three projects within the IITT investment, and conducting reviews of this program and these projects at predetermined checkpoints  In addition, with regard to the selected leading practice for monitoring agile projects, the Secret Service had fully implemented this practice for one of its two projects being implemented using agile and had partially implemented this practice for the other project  Table 13 provides a summary of DHS’s and the Secret Service’s implementation of these leading practices, as relevant for one program and three projects within IITT  Monitor program performance and conduct reviews at predetermined checkpoints or milestones  Consistent with leading practices, DHS and the Secret Service monitored the performance of IITT’s program and projects by comparing actual cost, schedule, and performance information against planned targets and conducting reviews at predetermined checkpoints  For example, within the Secret Service: The Enabling Capabilities program and Multi-Level Security project monitored their contractors’ costs spent to-date on a monthly basis and compared them to the total contract amounts  OCIO used integrated master schedules to monitor the schedule performance of the Enabling Capabilities program and Multi-Level Security project  OCIO also monitored the cost, schedule, and performance of the Uniformed Division Resource Management System and Events Management projects during monthly status reviews  In addition, DHS and the Secret Service conducted acquisition decision event reviews and systems engineering life cycle technical reviews of IITT’s program and projects at predetermined checkpoints and, when applicable, identified deviations from established cost, schedule, and performance targets  For example: Secret Service OCIO met with DHS’s Office of Program Accountability and Risk Management in February 2017, and with DHS’s Acting Under Secretary for Management in June 2017, to discuss a schedule breach for the Enabling Capabilities program  In particular, the Enabling Capabilities program informed DHS that the program needed to change the planned date for acquisition decision event 3 (the point at which a decision is made to fully deploy the system) in order to conduct tests in an operational environment prior to that decision event  This delay was due to the Secret Service misunderstanding the tests that it was required to conduct prior to that decision event  Specifically, the Enabling Capabilities program had conducted tests on “production representative” systems, but these tests were not sufficient to meet the requirements for acquisition decision event 3  The project team for Multi-Level Security identified that certain technical issues they had experienced would delay system deployment and full operational capability (the point at which an investment becomes fully operational)  As such, in October 2017, the project notified the Secret Service Component Acquisition Executive of these expected delays  In particular, the web browser that was intended to provide users on “Sensitive But Unclassified” workstations the ability to view information from different security levels, experienced technical delays in meeting personal identity verification requirements  The project team also described for the executive how the schedule delay would affect the project’s performance metrics and funding, and subsequently updated the project plan accordingly  Measure and monitor agile projects on, among other things, velocity (i e , number of story points completed per sprint or release), development progression (e g , the number of features and user stories planned and accepted), product quality (e g , number of defects), and post-deployment user satisfaction  Secret Service OCIO measured its two agile projects—Uniformed Division Resource Management System and Events Management— using certain agile metrics  In particular, OCIO officials measured the Uniformed Division Resource Management System and Events Management projects using key metrics related to velocity and development progression  For example, the officials measured development progression for both projects on a daily basis  In addition, OCIO officials monitored each project’s progress against these metrics during bi-weekly reviews that they conducted with each project team  The OCIO officials also tracked product quality metrics for the Uniformed Division Resource Management System  For example, on a monthly basis, the officials tracked the number of helpdesk tickets that had been resolved related to the system  In addition, on a quarterly basis, they tracked the number of Uniformed Division Resource Management System defects that (1) had been fixed and (2) were in the backlog  However, while OCIO officials received certain post-deployment user satisfaction information from end-users of the Uniformed Division Resource Management System by, among other things, tracking the number of helpdesk tickets related to the system and via daily verbal, undocumented feedback from certain Uniformed Division officers, OCIO officials had not fully measured and documented post- deployment user satisfaction with the system, such as via a survey of employees who use the system  The officials stated that they had not conducted and documented a survey because they were focused on (1) addressing software performance issues that occurred after they deployed the system to a limited number of users, and (2) continuing system deployment to the remaining users after they addressed the performance issues  OCIO officials stated that they plan to conduct such a documented survey by the end of September 2018  The results of the user satisfaction survey should provide OCIO with important information on whether the Uniformed Division Resource Management System is meeting users’ needs  The Secret Service’s full implementation of 11 of 14 component-level CIO responsibilities constitutes a significant effort to establish CIO oversight for the component’s IT portfolio  Additional efforts to fully implement the remaining 3 responsibilities, including ensuring that all IT contracts are reviewed, as appropriate; ensuring that the Secret Service’s enterprise governance policy appropriately specifies the CIO’s role in developing and reviewing the component’s IT budget formulation and execution; and ensuring agile projects measure product quality and post-deployment user satisfaction, will further position the CIO to effectively manage the Secret Service’s IT portfolio  When effectively implemented, IT workforce planning and management activities can facilitate the successful accomplishment of an agency’s mission  However, the Secret Service had not fully implemented all of the 15 selected practices for its IT workforce for any of the five areas— strategic planning, recruitment and hiring, training and development, employee morale, and performance management  The Secret Service’s lack of (1) a strategic workforce planning process, including the identification of all required knowledge and skills, assessment of competency gaps, and targeted strategies to address specific gaps in competencies and staffing; (2) targeted recruiting activities, including metrics to monitor the effectiveness of the recruitment program and adjustment of the recruitment program and hiring efforts based on metrics; (3) a training program, including the identification of required training for IT staff, ensuring that staff take required training, and assessment of performance data regarding the training program; and (4) a performance management system that includes all relevant technical competencies, greatly limits its ability to ensure the timely and effective acquisition and maintenance of the Secret Service’s IT infrastructure and services  On the other hand, by monitoring program performance and conducting reviews at predetermined checkpoints for one program and three projects associated with the IITT investment, in accordance with leading practices, the Secret Service and DHS provided important oversight needed to guide that program and those projects  Measuring projects on leading agile metrics also provided the Secret Service CIO with important information on project performance  We are making the following 13 recommendations to the Director of the Secret Service: The Director should ensure that the CIO establishes and documents an IT acquisition review process that ensures the CIO or the CIO’s delegate reviews all contracts containing IT, as appropriate  (Recommendation 1) The Director should update the enterprise governance policy to specify (1) the CIO’s current role and responsibilities on the Executive Resources Board, to include developing and reviewing the IT budget formulation and execution; and (2) the Deputy CIO’s role and responsibilities on the Enterprise Governance Council  (Recommendation 2) The Director should ensure that the Secret Service develops a charter for its Executive Resources Board that specifies the roles and responsibilities of all board members, including the CIO  (Recommendation 3) The Director should ensure that the CIO includes product quality and post-deployment user satisfaction metrics in the modular outcomes and target measures that the CIO sets for monitoring agile projects  (Recommendation 4) The Director should ensure that the CIO identifies all of the required knowledge and skills for the IT workforce  (Recommendation 5) The Director should ensure that the CIO regularly analyzes the IT workforce to identify its competency needs and any gaps it may have  (Recommendation 6) The Director should ensure that, after OCIO completes an analysis of the IT workforce to identify any competency and staffing gaps it may have, the Secret Service updates its recruiting and hiring strategies and plans to address those gaps, as necessary  (Recommendation 7) The Director should ensure that the Office of Human Resources (1) develops and tracks metrics to monitor the effectiveness of the Secret Service’s recruitment activities for the IT workforce, including their effectiveness at addressing skill and staffing gaps; and (2) reports to component leadership on those metrics  (Recommendation 8) The Director should ensure that the Office of Human Resources and OCIO adjust their recruitment and hiring plans and activities, as necessary, after establishing and tracking metrics for assessing the effectiveness of these activities for the IT workforce  (Recommendation 9) The Director should ensure that the CIO (1) defines the required training for each IT workforce group, (2) determines the activities that OCIO will include in its IT workforce training and development program based on its available training budget, and (3) implements those activities  (Recommendation 10) The Director should ensure that the CIO ensures that the IT workforce completes training specific to their positions (after defining the training required for each workforce group)  (Recommendation 11) The Director should ensure that the CIO collects and assesses performance data (including qualitative or quantitative measures, as appropriate) to determine how the IT training program contributes to improved performance and results (once the training program is implemented)  (Recommendation 12) The Director should ensure that the CIO updates the performance plans for each occupational series within the IT workforce to include the relevant technical competencies, once identified, against which IT staff performance should be assessed  (Recommendation 13) DHS provided written comments on a draft of this report, which are reprinted in appendix III  In its comments, the department concurred with all 13 of our recommendations and provided estimated completion dates for implementing each of them  For example, with regard to recommendation 2, the department stated that the Secret Service would update its enterprise governance policy and related policies to outline the roles and responsibilities of the CIO and Deputy CIO, among others, by March 31, 2019  In addition, for recommendation 13, the department stated that the Secret Service OCIO will include relevant technical competencies in performance plans, as appropriate, in the next performance cycle that starts in July 2019  If implemented effectively, these actions should address the weaknesses we identified  The department also identified a number of other actions that it said had been taken to address our recommendations  For example, in response to recommendation 8, which calls for the Office of Human Resources to (1) develop and track metrics to monitor the effectiveness of the Secret Service’s recruitment activities for the IT workforce and (2) report to component leadership on those metrics, DHS stated that the Secret Service’s Office of Human Resources’ Outreach Branch provides to the department metrics on recruitment efforts toward designated priority mission-critical occupations  However, for fiscal year 2017, only 1 of the 12 occupational series associated with the Secret Service’s IT workforce was designated as a mission-critical occupation for the component (i e , the 2210 IT Specialist series)  The 11 other occupational series were not designated as mission- critical occupations  In addition, for fiscal year 2018, none of these 12 occupational series were designated as mission-critical occupations  As such, metrics on recruiting for these IT series may not have been reported to DHS leadership  Moreover, while we requested documentation of the recruiting metrics for the Secret Service’s IT workforce and, during the course of our review, had multiple subsequent discussions with the Secret Service regarding such metrics, the component did not provide documentation that demonstrated it had established recruiting metrics for its IT workforce  Tracking such metrics and reporting the results to Secret Service leadership, as we recommended, would provide management with important information necessary to make effective recruitment decisions  Further, in response to recommendation 10, which among other things, calls for the CIO to define the required training for each IT workforce group, the department stated that the Secret Service OCIO recently developed training requirements for each workforce group, which were issued during our audit  However, while during our audit OCIO provided a list of recommended training courses, the office did not identify them as being required courses  Defining training that is required for each IT workforce group, as we recommended, would inform OCIO of the necessary training for each position and enable the office to prioritize this training, to ensure that its staff have the needed knowledge and skills  In addition to the aforementioned comments, we received technical comments from DHS and Secret Service officials, which we incorporated, as appropriate  We are sending copies of this report to the appropriate congressional committees, the Secretary of Homeland Security, the Director of the Secret Service, and other interested parties  In addition, this report is available at no charge on the GAO website at http://www gao gov  Should you or your staffs have any questions on information discussed in this report, please contact me at (202) 512-4456 or HarrisCC@gao gov  Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report  GAO staff who made major contributions to this report are listed in appendix IV  Our objectives were to evaluate the extent to which: (1) the U S  Secret Service (Secret Service) Chief Information Officer (CIO) has implemented selected information technology (IT) oversight responsibilities, (2) the Secret Service has implemented leading workforce planning and management practices for its IT workforce, and (3) the Secret Service and the Department of Homeland Security (DHS) have implemented selected performance and progress monitoring practices for the Information Integration and Technology Transformation (IITT) investment  To address the first objective, we analyzed DHS’s policies and guidance on IT management to identify the responsibilities that were to be implemented by the component-level CIO related to overseeing the Secret Service’s IT portfolio, including existing systems, acquisitions, and investments  From the list of 33 responsibilities that we identified, we then excluded the responsibility that was associated with information security, which is expected to be addressed as part of a separate, subsequent GAO review  We also excluded those responsibilities that were significantly large in scope (e g , implement an enterprise architecture) or that, in our professional judgment, lacked specificity (e g , provide timely delivery of mission IT services)  As a result, we excluded from consideration for this review a total of 10 CIO responsibilities  For the 23 that remained, we then combined certain responsibilities that overlapped with other related responsibilities  For example, we combined related responsibilities on the component CIO’s review of IT contracts  As a result, we identified 14 responsibilities for review  We validated with the acting DHS CIO that these responsibilities were key responsibilities for the department’s component-level CIOs  We then included all 14 of the responsibilities in our review  The 14 selected component-level CIO responsibilities were: 1  Develop and review the component IT budget formulation and execution  2  Manage the component IT investment portfolio, including establishing an IT acquisition review process that enables component and DHS review of component acquisitions (i e , contracts) that contain IT  3  Develop, implement, and maintain a detailed IT strategic plan  4  Ensure all component IT policies are in compliance and alignment with DHS IT directives and instructions  5  Concur with each program’s and/or project’s systems engineering life cycle tailoring plan  6  Support the Component Acquisition Executive to ensure processes are established that enable systems engineering life cycle technical reviews and that they are adhered to by programs and/or projects  7  Ensure that all systems engineering life cycle technical review exit criteria are satisfied for each of the component’s IT programs and/or projects  8  Ensure the necessary systems engineering life cycle activities have been satisfactorily completed as planned for each of the component’s IT programs and/or projects  9  Concur with the systems engineering life cycle technical review completion letter for each of the component’s IT programs and/or projects  10  Maintain oversight of their component’s agile development approach for IT by appointing the responsible personnel, identifying investments for adoption, and reviewing artifacts  11  With Component Acquisition Executives, evaluate and approve the application of agile development for IT programs consistent with the component’s agile development approach  12  Set modular outcomes and target measures to monitor the progress in achieving agile implementation for IT programs and/or projects within their component  13  Participate on DHS’s CIO Council, Enterprise Architecture Board, or other councils/boards as appropriate, and appoint employees to serve when necessary  14  Meet the IT competency requirements established by the DHS CIO, as required in the component CIO’s performance plan  To determine the extent to which the Secret Service CIO has implemented these responsibilities, we obtained and assessed relevant component documentation and compared it to the responsibilities  Specifically, we obtained and analyzed documentation including evidence of the CIO’s participation on the Secret Service governance board that has final decision authority and responsibility for enterprise governance, including the IT budget; monthly program management reports showing the CIO’s oversight of IT programs, projects, and systems; monthly status reports on program spending; the Secret Service’s IT strategic plan; the Secret Service’s enterprise governance policy; meeting minutes from the DHS board and council on which the CIO participated (i e , the CIO Council and Enterprise Architecture Board); and documentation demonstrating whether the CIO met the IT competency requirements  In addition, we obtained and analyzed relevant documentation related to the CIO’s oversight of the major IT investments on which the Secret Service was spending development, modernization, and enhancement funds during fiscal year 2017  As of July 2017, the component had one investment—IITT—that met this criterion  IITT is a portfolio investment that, as of July 2017, included two programs (one of which included three projects) and one standalone project (i e , it was not part of another program) that had capabilities that were in planning or development and modernization: the Enabling Capabilities program, Enterprise Resource Management System program (which included three projects, called Uniformed Division Resource Management System, Events Management, and Enterprise-wide Scheduling), and Multi-Level Security project  In particular, we obtained and analyzed documentation related to the CIO’s oversight of the systems engineering life cycles for IITT’s Enabling Capabilities program and the Uniformed Division Resource Management System, Events Management, and Multi-Level Security projects  This documentation included acquisition program baselines, systems engineering life cycle tailoring plans, and systems engineering life cycle technical review briefings and completion letters  We then compared the documentation against the five selected systems engineering life cycle oversight responsibilities (responsibilities 5, 6, 7, 8, and 9)  We also obtained and analyzed documentation related to the CIO’s oversight of two projects that the Secret Service was implementing using an agile methodology—Uniformed Division Resource Management System and Events Management  Specifically, we obtained and assessed documentation of (1) the CIO’s approval for these projects to be implemented using an agile methodology and (2) the agile development metrics that the CIO established for each of these projects  We then compared this documentation to the three agile development-related component-level CIO responsibilities (responsibilities 10, 11, and 12)  Further, to determine the extent to which the Secret Service CIO had established an IT acquisition (i e , contract) review process that enabled component and DHS review of component contracts that contain IT (which is part of responsibility 2), we first asked Secret Service officials to provide us with a list of all new, unclassified IT contracts that the component awarded between October 1, 2016, and June 30, 2017  The Secret Service officials provided a list of 54 contracts  We validated that these were contracts for IT or IT services by: (1) searching for them in the Federal Procurement Data System – Next Generation; (2) identifying their associated product or service codes, as reported in that system; and (3) determining whether those codes were included in the universe of 79 IT product or service codes identified by the Category Management Leadership Council  In validating the list of 54 contracts provided by the Secret Service, we determined that 5 of the contracts were not associated with an IT product or service code  As such, we removed those contracts from the list  In addition, we found that three other items identified by the component were not in the Federal Procurement Data System – Next Generation  Secret Service officials subsequently confirmed that these three items were not contracts  We therefore removed these three items from the list  As such, the final list of validated contracts identified by the Secret Service included 46 IT contracts  In addition, to identify any IT contracts that were not included in the list provided by the Secret Service, we conducted a search of the Federal Procurement Data System – Next Generation to identify all unclassified contracts that (1) the component awarded between October 1, 2016, and June 30, 2017; (2) were not a modification of a contract; and (3) were associated with 1 of the 79 IT product or service codes identified by the Category Management Leadership Council  Based on these criteria, we identified 144 Secret Service IT contracts in the Federal Procurement Data System – Next Generation (these 144 contracts included the 46 contracts previously identified by Secret Service officials)  We then asked Secret Service officials to validate the accuracy, completeness, and reliability of these data, which they did  From each of these two lists of IT contracts (i e , the list of 46 IT contracts identified by the Secret Service and the list of 144 IT contracts that we identified from the Federal Procurement Data System – Next Generation), we then selected random, non-generalizable samples of contracts, as described below  First, from the list of 46 IT contracts identified by Secret Service officials, we removed 4 contracts that had total values of less than $10,000  To ensure that we selected across all contract sizes, we randomly selected 12 contracts from the remaining list of 42 contracts, using the following cost ranges: $10,000 to $50,000 (4 contracts), more than $50,000 to less than $250,000 (4 contracts), and more than $250,000 (4 contracts)  Second, from our list of 144 IT contracts that we identified from the Federal Procurement Data System – Next Generation, we removed the 46 contracts identified by Secret Service officials  We also removed 12 contracts that had total values of less than $10,000  To ensure that we selected across all contract sizes, we randomly selected 21 contracts from the remaining list of 86 contracts, using the following cost ranges: $10,000 to $50,000 (7 contracts), more than $50,000 to less than $250,000 (7 contracts), and more than $250,000 (7 contracts)  In total, we selected 33 IT contracts for review  We separated the contracts into the three cost ranges identified above in order to ensure that contracts of different value levels had been selected  This enabled us to determine the extent to which the CIO appropriately reviewed contracts of all values  To determine the extent to which the CIO had established an IT contract approval process that enabled the Secret Service and DHS, as appropriate, to review IT contracts, we first asked Secret Service Office of the CIO (OCIO) officials for documentation of their IT contract approval process  These officials were unable to provide such documentation  Instead, the officials stated that the Secret Service CIO or the CIO’s delegate approves all IT contracts prior to award  The officials also provided documentation that identified four staff to whom the CIO had delegated his approval authority  Further, the officials stated that, in accordance with DHS’s October 2016 IT acquisition review guidance, they submitted to DHS OCIO for approval any IT contracts that met DHS’s thresholds for review, including those that (1) had total estimated procurement values of $2 5 million or more, and (2) were associated with a major investment  Based on the IT acquisition review process that Secret Service OCIO officials described, we then obtained and analyzed each of the 33 selected IT contracts and associated approval documentation to determine whether or not the Secret Service CIO or the CIO’s delegate had approved each of the contracts  In particular, we (1) reviewed the name of the contract approver on the approval documentation, and (2) compared the signature dates that were on the contracts to the signature dates that were identified on the associated approval documentation  In addition, to determine whether or not the Secret Service CIO submitted to DHS OCIO for approval the IT contracts that (1) had total estimated procurement values of $2 5 million or more, and (2) were associated with major investments, we first analyzed the 144 Secret Service IT contracts that we had previously pulled from the Federal Procurement Data System – Next Generation to determine which contracts met the $2 5 million threshold  We identified 4 contracts that met this threshold  We then requested that OCIO identify the levels (i e , major or non-major) of the investments associated with these contracts  According to OCIO officials, 3 of the 4 contracts were associated with non-major investments and 1 was not associated with an investment  As such, based on DHS’s October 2016 IT acquisition review guidance, none of these contracts needed to be submitted to DHS OCIO for review  We also interviewed Secret Service officials, including the CIO and Deputy CIO, regarding the CIO’s implementation of the 14 selected component-level responsibilities  We assessed the evidence against the selected responsibilities to determine the extent to which the CIO had implemented them  To address the second objective—determining the extent to which the Secret Service had implemented leading workforce planning and management practices for its IT workforce—we first identified seven topic areas associated with human capital management based on the following sources: The Office of Personnel Management’s Human Capital Framework  Office of Personnel Management and the Chief Human Capital Officers Council Subcommittee for Hiring and Succession Planning, End-to-End Hiring Initiative  GAO, High-Risk Series: Progress on Many High-Risk Areas, While Substantial Efforts Needed on Others  GAO, IT Workforce: Key Practices Help Ensure Strong Integrated Program Teams; Selected Departments Need to Assess Skill Gaps  GAO, Department of Homeland Security: Taking Further Action to Better Determine Causes of Morale Problems Would Assist in Targeting Action Plans  GAO, Human Capital: A Guide for Assessing Strategic Training and Development Efforts in the Federal Government  GAO, Results-Oriented Cultures: Creating a Clear Linkage between Individual Performance and Organizational Success  DHS acquisition guidance  Secret Service acquisition guidance  Among these topic areas, we then selected five areas that, in our professional judgment, were of particular importance to successful workforce planning and management  They were also previously identified as part of our high-risk and key issues work on human capital management  These areas include: (1) strategic planning, (2) recruitment and hiring, (3) training and development, (4) employee morale, and (5) performance management  We also reviewed these same sources and identified numerous leading practices associated with the five topic areas  Among these leading practices, we then selected three leading practices within each of the five areas (for a total of 15 selected practices)  The selected practices were foundational practices that, in our professional judgment, were of particular importance to successful workforce planning and management  Table 14 identifies the five selected workforce areas and 15 selected associated practices  To determine the extent to which the Secret Service had implemented the selected leading workforce planning and management practices for its IT workforce, we obtained and assessed documentation and compared it against the 15 selected practices  In particular, we analyzed the Secret Service’s human capital strategic plan, human capital staffing plan, IT strategic plan, documentation of the component’s staffing model that it used to determine the number of IT staff needed, an independent verification and validation report on the component’s staffing models, documentation of the current number of IT staff, the Secret Service’s recruitment and outreach plans, documentation of DHS’s hiring authorities (which are applicable to the Secret Service), the Secret Service’s training strategic plan, IT workforce training plan, action plans for improving employee morale, and templates used for measuring and reporting employee performance  We also interviewed Secret Service officials—including the CIO, Deputy CIO, and workforce planning staff—about the component’s workforce- related policies and documentation  Further, we discussed with the officials the Secret Service’s efforts to implement the selected workforce practices for its IT workforce  Regarding our assessments of the Secret Service’s implementation of the 15 selected workforce planning and management practices, we assessed a practice as being fully implemented if component officials provided supporting documentation that demonstrated all aspects of the practice  We assessed a practice as not implemented if the officials did not provide any supporting documentation for that practice, or if the documentation provided did not demonstrate any aspect of the practice  We assessed a practice as being partly implemented if the officials provided supporting documentation that demonstrated some, but not all, aspects of the selected practice  In addition, related to our assessments of the Secret Service’s implementation of the five selected overall workforce areas, we assessed each area as follows, based on the implementation of the three selected practices within each area: Fully implemented: The Secret Service provided evidence that it had fully implemented all three of the selected practices within the workforce area; Substantially implemented: The Secret Service provided evidence that it had either fully implemented two selected practices and partly implemented the remaining one selected practice within the workforce area, or fully implemented one selected practice and partly implemented the remaining two selected practices within the workforce area; Partially implemented: The Secret Service provided evidence that it had partly implemented each of the three selected practices within the workforce area; Minimally implemented: The Secret Service provided evidence that it partly implemented two selected practices and not implemented the remaining one selected practice within the workforce area, or partly implemented one selected practice and not implemented the remaining two selected practices within the workforce area; or Not implemented: The Secret Service did not provide evidence that it had implemented any of the three selected practices within the workforce area  To address the third objective—determining the extent to which the Secret Service and DHS have implemented selected performance and progress monitoring practices for IITT—we reviewed leading project monitoring practices and guidance from the Software Engineering Institute  First, we reviewed the practices within the Project Monitoring and Control process area of the Institute’s Capability Maturity Model Integration® for Acquisition  Based on our review, we identified four practices associated with monitoring program performance and progress  In our professional judgment, all four of these practices were of significance to managing the IITT investment given the phase of the life cycle that the investment was in  As such, we elected to include all four of these practices in our review, and combined them into one practice, as follows: Monitor program performance and conduct reviews at predetermined checkpoints or milestones by, among other things, comparing actual cost, schedule, and performance data with estimates in the program plan and identifying significant deviations from established targets or thresholds for acceptable performance levels  Next, given the agile development methodology that the Secret Service was using for certain projects within IITT, we reviewed the Software Engineering Institute’s technical note on the progress monitoring of agile contractors  Based on our review, and in consultation with an internal expert, we selected four agile metrics that the Institute identified as important for successful agile implementations and that, in our professional judgment, were of most significance to monitoring the performance of IITT’s agile projects  We then combined these four metrics into one practice, as follows: Measure and monitor agile projects on velocity (i e , number of story points completed per sprint or release), development progression (e g , the number of features and user stories planned and accepted), product quality (e g , number of defects), and post-deployment user satisfaction  To determine the extent to which DHS and the Secret Service had implemented the first selected practice, we analyzed relevant program management and governance documentation for IITT’s Enabling Capabilities program, and Multi-Level Security, Uniformed Division Resource Management System, and Events Management projects  In particular, we analyzed acquisition program baselines, DHS acquisition decision event memorandums, artifacts from DHS and Secret Service program oversight reviews, cost monitoring reports, program integrated master schedules, and program status briefings, and compared this documentation to the selected practice  We also interviewed Secret Service OCIO officials regarding the Secret Service’s and DHS’s efforts to monitor the IITT investment’s performance and progress  To determine the extent to which the Secret Service had implemented the second selected practice related to measuring and monitoring agile projects on agile metrics (i e , velocity, development progression, product quality, and post-deployment user satisfaction), we obtained and analyzed agile-related documentation for the two projects that the Secret Service was implementing using an agile methodology—Uniformed Division Resource Management System and Events Management  Specifically, to determine the extent to which the Secret Service was measuring and monitoring these two projects on metrics for velocity and development progression, we obtained and analyzed documentation, such as sprint burndown charts and monthly program status reports, and compared it to the selected practice  In addition, the agile metrics for product quality and post-deployment user satisfaction were only applicable to projects that had been deployed to users  As such, these metrics were applicable to the Uniformed Division Resource Management System (which the Secret Service had deployed to users) and were not applicable to Events Management (which the Secret Service had not yet deployed to users, as of early May 2018)  We therefore obtained and analyzed documentation demonstrating that Secret Service OCIO measured product defects for the Uniformed Division Resource Management System  We also requested documentation demonstrating that OCIO had measured and monitored post-deployment user satisfaction for this project, including via a survey  OCIO officials stated that they had not conducted such a survey and were unable to provide documentation demonstrating they had measured post- deployment user satisfaction for the Uniformed Division Resource Management System  To assess the reliability of the cost, schedule, and agile-related data that were in DHS and the Secret Service’s program management and governance documentation for the IITT investment, we (1) analyzed related documentation and assessed the data against existing agency records to identify consistency in the information, and (2) examined the data for obvious outliers, incomplete, or unusual entries  We determined that the data in these documents were sufficiently reliable for our purpose, which was to evaluate the extent to which DHS and the Secret Service had implemented processes for monitoring the IITT investment’s performance and progress  We conducted this performance audit from May 2017 to November 2018 in accordance with generally accepted government auditing standards  Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives  We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives  As of June 2018, the Secret Service’s Information Integration and Technology Transformation (IITT) investment included two programs (one of which included three projects) and one project that had capabilities that were in planning or development and modernization, as described below: Enabling Capabilities  This program is intended to, among other things, (1) modernize and enhance the Secret Service’s information technology (IT) network infrastructure, including increasing bandwidth and improving the speed and reliability of the Secret Service’s IT system performance; (2) enhance cybersecurity to protect against potential intrusions and viruses; and (3) provide counterintelligence and data mining capabilities to improve officials’ ability to perform the Secret Service’s investigative mission  Enterprise Resource Management System  This program comprises three projects that are intended to provide: a system that will enable the Secret Service’s Uniformed Division to efficiently and effectively plan, provision, and schedule missions (this project is referred to as Uniformed Division Resource Management System), a system that will unify the logistical actions (e g , assigning personnel) surrounding special events that Secret Service agents need to protect, such as the United Nations General Assembly (this project is referred to as Events Management), and a capability for creating schedules for Secret Service agents and administrative, professional, and technical staff, as well as the ability to generate reports on information such as monthly hours worked (this project is referred to as Enterprise-wide Scheduling)  Multi-Level Security  This project is intended to enable authorized Secret Service users to view two levels of classified information on a single workstation  Previously, data at various security levels were contained and used in multiple disparate systems  Multi-Level Security is intended to streamline users’ access to information at different security levels in order to enable them to more quickly and effectively perform their duties  Table 15 provides the planned life cycle cost and schedule estimates (threshold values) for each IITT program and project that had capabilities in planning or development and modernization, as of June 2018  In addition, the table describes any changes in those cost and schedule estimates, as well as the key reasons for any changes, as identified by officials from the Secret Service’s Office of the Chief Information Officer  In addition to the contact named above, the following staff made key contributions to this report: Shannin O’Neill (Assistant Director), Emily Kuhn (Analyst-in-Charge), Quintin Dorsey, Rebecca Eyler, Javier Irizarry, and Paige Teigen 
Report 2:  National Popular Vote opponents oppose the compact on various grounds  Some argue that it is unconstitutional or "anticonstitutional," that is, contrary to the Founders' intentions and the spirit of the nation's fundamental charter  It is also asserted that NPV would solve few of the electoral college system's alleged problem issues and would create some of its own  Finally, some observers note that the NPV compact is an interstate compact as defined in Article I, Section 10, clause 3 of the Constitution, and as such would be subject to congressional approval  This issue is examined in greater detail in a separate section of this report  On the most fundamental philosophical basis, opponents might argue that the NPV compact violates one of the basic principles of majoritarian democracy: it does not require that candidates win a majority of the popular vote in order to gain the presidency  Rather, it would anoint as winner the ticket that gains more popular votes than any other  A majoritarian democracy, it may be argued, should require a majority in order to elect; it may be further noted that the existing system, by comparison, requires a majority in the electoral college  As one commentary noted only the strictest of majoritarians desire a purely majoritarian presidential election system, and those individuals should be deeply troubled by the prospect of plurality presidencies, which the NPVC [sic] expressly countenances  Indeed, the NPVC promises to create more difficulties and "misfires" in its own way than the Electoral College system its proponents so earnestly seek to replace  Further, opponents might ask how the NPV compact would function in the event of a multicandidate election, a phenomenon that recurs from time to time in U S  presidential elections  One commentator posited the following problematic scenario under such circumstances: Under the compact, one can easily imagine a multi-candidate race in which a candidate would win, say, a thirty-four percent plurality of the popular vote nationwide while losing in every state and D C  If all of the states and D C  were signatories to the compact, all the electoral votes in such a hypothetical race would be awarded contrary to the will of voters choosing electors (still not voting directly for President under this plan)  Would the United States accept a President who wasn't the choice of sixty-six percent of those voting, nor even the choice of a single state? The existing electoral college system, NPV skeptics might also assert, is a fundamental element in the federal constitutional arrangements established by the Constitution  Fearing "the tyranny of the majority," the Founders established a system of government that provides checks and balances designed to restrain the majority and secure minority rights  These principles are also embedded in the structure of federal elections: the Senate, the House of Representatives, and the presidency were deliberately provided with different terms of office and different electorates, and the states were given an important role in the federal election process  In particular, through the electoral college the United States elects its national Presidents and Vice Presidents in a state-based federal election  Successful nominees are compelled under this system to present a broad political vision that commands nation-spanning "concurrent majorities" and appeals to the great variety of Americans  As in the case of the Senate, less populous states are accorded a small numerical advantage by assignment of two at-large electors reflecting the Constitution's equal apportionment of Senators to each state regardless of its population  The NPV initiative, they could claim, would discard the Founders' intentions in favor of what they consider to be a flawed "majoritarian" presidency that would ill-serve a continent-spanning and profoundly diverse republic  Another criticism centers on the use of the NPV compact to effect a fundamental change in the presidential election process and a de facto amendment to the Constitution, but without following the procedures set out in Article V  Critics may note that NPV's founders admit their plan is an "end run" around the Constitution  Proponents might counter with the argument that Article V presents too high a hurdle for what they consider a necessary reform of the system  Opponents, however, could respond that the Founders intended the various supermajority requirements in Congress and the states to ensure that successful constitutional amendments enjoy broad national support  The bare majority of electoral votes required to implement NPV, they might note, meets none of these supermajority requirements  As one study critical of the NPV initiative concluded, because the use of an interstate compact "does not conform to the constitutional means of changing the original decisions of the Framers, NPV could not [therefore] be a legitimate innovation " A final argument on this line might be that one "end run" around the amendment process might lead to others, setting a dangerous precedent for similar efforts in the future  Opponents might note that the NPV would eliminate the electoral college system's multiplier effect generated by the winner-take-all or general ticket system used in 48 states and the District of Columbia, which tends to magnify the winning ticket's margin of victory, and is said to confer greater legitimacy to the victors  For instance, in 2016, Republican nominee Donald Trump's clear electoral vote majority of 304 votes (56 5% of the total), compared with Democratic nominee Hillary Clinton's 227 (42 2% of the total) could be said to reinforce and confirm his victory, notwithstanding Clinton's plurality of the popular vote (48 2%), compared with Trump's 46 1%  From a practical standpoint, NPV opponents might argue that the NPV would actually lead to an increase in contested election results and legal challenges in the states, as the political parties maneuver to claim every possible vote  They assert that the existing tabulation of popular votes within each state reduces contested results and recounts  Under NPV, the incentive to gain every vote would arguably lead to far broader disputes and widespread recounts at every level of election administration  As a Heritage Foundation study concluded Under the NPV … any suspicions necessitating a recount in even a single district would be an incentive for a national recount     The prospect of a candidate challenging "every precinct, in every county, in every state of the Union" should be abhorrent to anyone who witnessed the drama, cost, delay, and undue litigation sparked by the Florida recount of 2000  Opponents might also assert that the increased incidence of recounts would be further complicated by wide-ranging disparities in state procedures, potentially leading to prolonged periods of uncertainty following close presidential elections  Critics may also note that the NPV plan contains no "statute of limitations," unlike proposed constitutional amendments, for which Congress typically sets a seven-year ratification period  Where, critics may ask, is a similar time limit that would "sunset" the NPV compact, after which it would expire or return to "square one"? According to its website, NPV was launched on February 23, 2006; if it were a constitutional amendment proposed by Congress, it would have expired on February 23, 2013, since by the end of the customary seven-year deadline it was "ratified" by only eight states and the District of Columbia  By what reasoning, they might ask, should the NPV be exempt from the standards of timeliness and contemporaneity Congress customarily sets for constitutional amendments? Opponents might reject claims that, under NPV, campaign spending and candidate appearances would be spread and scheduled more widely, beyond the current concentration of time and resources in battleground states  They might argue that spreading campaign resources and candidate events in non-battleground states is a questionable argument to justify a fundamental change in the presidential election process  Campaign appearances and spending, they could assert, should not be considered to be a local economic stimulus package, nor are the amounts in question sufficient to make much of a difference in the economic condition of most states  As one critical analysis notes, "    the nation does not hold presidential elections to foster local economic development " Moreover, they might continue, it is equally dubious to assert that nominees will slight the concerns of citizens of the non-battleground states from which they draw their greatest support, or that concentrated campaigning in the battleground states somehow "disenfranchises" voters in others  In the modern era, a small percentage of voters actually attends an in-person presidential or vice presidential candidate appearance  Television (especially broadcast and cable TV news networks), social media, the internet, and newspapers—not the traditional rallies, torchlight parades, and handbills—dominate presidential election campaigns in the 21 st century  In addition to policy issues discussed previously, some observers have also raised questions related to the NPV initiative based on the fact that it is an interstate compact as defined in the Constitution  Others have questioned whether NPV might conflict with some provisions of the Voting Rights Act  The NPV initiative has been described by its supporters variously as a bill, a state-level statute, and an interstate compact  The latter reference necessitates an analysis of whether the initiative complies with the Compact Clause of the Constitution  An interstate compact—under the broadest understanding—is a contract between two or more consenting states  The Supreme Court has further suggested that an interstate compact often requires reciprocal commitments between the governments of two or more states, such that one state's commitment is conditioned on the action of another state and no state can unilaterally repeal its commitment  The use of interstate compacts predates the Constitution, as the Articles of Confederation contained a similar Compact Clause that provided a qualified prohibition on states entering into any agreements between them without the consent of Congress  The chaos resulting from the disunity created by the Articles of Confederation prompted the Framers of the Constitution generally to "impose more uniformity" among the states, resulting in a Constitution that wholly prohibits states from entering into any treaties, alliances, and federations  Nonetheless, the Constitution maintained the Articles of Confederation's qualified prohibition on interstate compacts and agreements, allowing states to enter into an interstate compact so long as the participating states seek the consent of Congress  Specifically, the Compact Clause provides that "No State shall, without the Consent of Congress     enter into any Agreement or Compact with another State     " While the historical rationale for Article I's qualified prohibition on interstate compacts is unclear, the Compact Clause generally reflects the view of the Framers that states should be able to work cooperatively together, as well as the concern that unchecked interstate alliances might threaten the harmony of the Union or the authority vested by the Constitution in the federal government  As the Supreme Court noted in Cuyler v  Adams , "By vesting in Congress the power to grant or withhold consent, or to condition consent on the states' compliance with specified conditions, the Framers sought to ensure that Congress would maintain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority " The Compact Clause places no limits on what might be done through an interstate compact other than the requirement of congressional consent  In the early years of government under the Constitution, compacts were used almost exclusively to settle boundary disputes  Beginning with the establishment of the Port of New York Authority in 1921, however, compacts began to be used to address more complex, regional issues requiring intergovernmental cooperation  Some compacts are merely advisory in form, but others may be regulatory, with significant powers granted to multistate commissions  More recently, compacts have addressed such wide-ranging concerns as mental health treatment, law enforcement and crime control, education, driver licensing and enforcement, environmental conservation, energy, nuclear waste control, facilities operations, transportation, economic development, insurance regulation, placement of children and juveniles, disaster assistance, and pollution control  Approximately 200 interstate compacts are in effect today  Accordingly, the central legal issue with respect to the Compact Clause is whether a given interstate compact requires the consent of Congress  While a "literal" reading of the Compact Clause "would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States [emphasis added]," the Supreme Court has repeatedly rejected such a reading  In 1893, in Virginia v  Tenness e e , Justice Stephen Field, writing for the Court, contended that a broad reading of the Compact Clause would "embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects[,]" requiring congressional consent to agreements "which the United States can have no possible objection or have any interest in interfering with," as well as those that "may tend to increase     the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States     " Surmising that the Compact Clause could not have been intended to have such a broad reach, Justice Field concluded that the Clause prohibits states from entering into compacts without congressional consent only when the underlying compact is "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States " The Supreme Court has subsequently reaffirmed Justice Field's "functional view of the Compact Clause," and, accordingly, generally where an agreement does not fall within the scope of the Compact Clause as envisioned by the Court in Virginia v  Tennessee , the agreement "will not be invalidated for lack of congressional consent " Whether the NPV initiative requires congressional consent under the Compact Clause first requires a determination as to whether NPV even constitutes an interstate compact  At times, its supporters have resisted framing the initiative as an interstate compact, arguably out of concern for running afoul of the Compact Clause's provisions  For example, Professor Akhil Amar has argued that because the initiative does not create a "new interstate governmental apparatus," the NPV should not be considered an interstate compact, as NPV compact signatory states are merely exercising power collectively that each state could exercise on its own  It is unclear, however, whether the creation of a new interstate governmental entity formed out of an agreement between two or more states is necessary, as opposed to sufficient, in order to deem an agreement as being an interstate compact subject to the Compact Clause  While the Supreme Court, in Northeast Bancorp , suggested that a "joint organization or body" formed out of an interstate agreement is a "classic indic[ium] of a compact," the Court has never adopted a definition of an interstate compact that solely rests on the existence of an interstate governmental body  Instead, the Court appears to have adopted a broader definition of what an interstate compact can entail  For example, in Virginia v  Tennessee , the Court noted that the words "compacts" and "agreements" are synonymous and "cover all stipulations affecting the conduct or claims of the parties " In other words, when two or more states enter into a stipulated agreement whereby one state agrees to perform an act in consideration for a reciprocal act by the other state(s), that agreement can be considered an interstate compact  This broad definition of a compact appears to encompass the NPV compact, as the initiative requires signatory states to agree mutually to appoint their electors to the winner of the national popular vote  Moreover, NPV binds each assenting state, as no member state can withdraw from it within six months or less of the end of a President's term  Because NPV prohibits states from freely "modify[ing] or repeal[ing] [the agreement] unilaterally" and requires "reciprocation" of mutual obligations, it appears that the initiative can be described as an interstate compact  Assuming the NPV initiative is an interstate compact, the question remains whether it is one that implicates the Compact Clause  The answer to that question primarily depends on whether NPV is "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States  " In other words, the "test" for whether a particular interstate compact requires congressional consent is centrally concerned with vertical balances of power between the federal government and the states; namely, "whether the Compact enhances state power quoad the National Government " While the NPV arguably increases the political power of the states that have consented to it by ensuring that those states' desired outcome for the presidential election—the awarding of the majority of electoral votes to the presidential candidate supported by the majority of the voting populace—it is unclear how that increase in political power would be at the expense of the power of the federal government  After all, the Constitution provides the federal government with no role in determining the members of the electoral college  One scholar has suggested that the NPV initiative would lead to a vertical alteration of power by eliminating the possibility that the House of Representatives would resolve a presidential election in the absence of an electoral majority for a single candidate because it is premised on a majority of electoral votes going to a single candidate  The House of Representatives, however, has decided only two presidential elections in American history, and whether such an arguably hypothetical and de minimis diminishment of federal power through the NPV would be sufficient to require congressional consent under the Compact Clause is simply unresolved by the relevant case law  While the Supreme Court's case law interpreting the Compact Clause is centrally concerned with vertical federalism concerns (i e , the balance of power between the state and federal governments), the Court has recognized a potential secondary rationale suggested for the Compact Clause: to preserve the horizontal balance of powers among the various states  And horizontal federalism concerns could very well be implicated by the Compact Clause, as the provision appears to have been included in the Constitution out of concern both for the supremacy of the federal government and unity among the various states  Whether the NPV compact threatens the powers of nonconsenting states has been the subject of much debate among academics  Those in support of the initiative have contended that the nonconsenting states do not lose any power as a result of the NPV  According to this line of argumentation, even under the NPV, all states would retain their right to select the electors of their choosing, as nonmember state electors would still be counted in the electoral vote  Others, however, have pointed to the underlying premise of the NPV—to enhance the political power of more populous states in presidential elections—as evidence that the initiative diminishes the power of nonconsenting states  In other words, while non-compacting states would still retain the power to appoint electors, the influence that comes with that power would arguably be diminished because a state's role in the national election would be defined by its percentage of the popular vote and not by its percentage of electors, warranting congressional interest in approving a compact that effectuated such a change in national elections  Ultimately, however, whether the NPV actually threatens the power of nonconsenting states is a debate that remains active within academia but would likely be the source of considerable litigation if the initiative ever became effective  If congressional consent is needed for the NPV, that consent can take various forms  Usually congressional consent to an interstate compact takes the form of a joint resolution or act of Congress specifying its approval of the text of the compact and adding any conditions or provisions it deems necessary, often embodying the compact document  As with most congressional actions, consent to an interstate compact must occur with the approval of both houses and must be signed by the President before it becomes law  Rarely has the President vetoed or threatened to veto consent legislation by Congress  While congressional consent to an interstate compact is most often explicit, consent by Congress may also be implied by subsequent acts of Congress as "[a]n inference clear and satisfactory that Congress     intended to consent" to a compact may be sufficient  Congress may also delegate its power to approve a compact to a federal official so long as an "intelligible principle" against which approval can be measured is apparent  Ultimately, if congressional consent is truly needed for NPV to be effective, the initiative might have difficulty ever being enacted because the approval of both houses of Congress and the President would likely necessitate additional hurdles beyond the already challenging task of amassing support at the state level for the NPV  Beyond the legal issues raised with respect to the Compact Clause, the NPV initiative also potentially raises other broader constitutional concerns, including whether the states can functionally obviate the role of the electoral college through the NPV  Article II of the Constitution establishes that the election of the President should occur indirectly through the election by the electoral college  The choice of an indirect election for the President was a deliberate one by the Framers of the Constitution, because, while noting the importance that the "sense of the people" should influence the choice for President, they found it "equally desirable" for the "immediate election" of the President to be made by a body representative of distinct state interests and removed from the threat of unchecked majoritarianism  The result was that the Constitution established a presidential election process that was "manifestly nonmajoritarian," with the electoral college, a body established to represent the distinct views of each state, as the centerpiece of the election process  The central constitutional issue presented by the NPV, therefore, is whether the states, through an interstate compact, can functionally transform the presidential election system enshrined in the Constitution into a more majoritarian process  Supporters of the NPV argue that the Constitution provides the legal means for states to transform the presidential election system into one where the President is elected based solely on the result of the national popular vote  Specifically, clause 2 of Article II, Section 1 of the Constitution provides the states with the power to "appoint, in such Manner as the Legislature thereof may direct," the electors who represent the state in the electoral college  Facially, the Constitution's primary limitation on the power of a state to select its electors is the final number of electors awarded to each state  While perhaps an argument can be made that the structure, logic, and history of the Constitution place limits on the manner or method in which a state chooses its electors, the text of the Constitution simply does not impose any such limits  Supreme Court case law also supports reading Article II of the Constitution to broadly provide states with wide discretion as to the manner in which its electors are selected  Specifically, in 1892 in McPherson v  Blacker, a unanimous Supreme Court upheld a Michigan law providing for the election by individual congressional district of presidential electors against a challenge that the law violated Article II of the Constitution  In so holding, the Court placed great emphasis on a number of state laws that existed shortly after the ratification that provided a variety of "modes of choosing the electors," including selection by the legislature itself, by a "vote of the people for a general ticket," "by vote of the people in districts," or by some permutation of those methods  Viewing this evidence together with the text of Article II and the historical evidence from the Constitutional Convention led the Court to broadly conclude state legislatures have "conceded plenary power     in the matter of the appointment of electors," allowing the Michigan law to stand  Applying McPherson to the case of the NPV, the argument can and has been made that if the states have plenary power with respect to the manner of how electors are appointed, the power necessarily allows states to select electors in line with the results of the national popular vote  More recently, supporters of the NPV have relied on the Supreme Court's 2015 ruling in Arizona Legislature v  Arizona Independent Redistricting Commission (AIRC) —which held that the State of Arizona had wide discretion under the Elections Clause of the Constitution to select the method by which the state provided for redistricting —to argue that the states retain broad discretion in selecting electors under Article II, which uses similar language to the provision interpreted in AIRC  Others have argued that the structure of the Constitution and historical evidence suggest that the states do not have such vast discretion in appointing electors as to functionally transform the election for President into a national popular referendum  As noted elsewhere in this report, the electoral college was created by the Framers to ensure that states with the least population retained power in the selection of the President, providing a check against domination by the most populous states  The electoral college, being a product of the choices of individual state legislatures, was envisioned by the Framers as a body that would represent the specific interests of a given state, as opposed to the undifferentiated nation at large  Accordingly, it may be argued that allowing the most populous states to collude to ensure that the national popular vote, as opposed to the wishes of an individual state, dictates the results of a state's slate of electors, could arguably be irreconcilable with the Framers' intentions with respect to the electoral college  As such, for those who find the NPV compact constitutionally suspect under Article II, McPherson 's broad pronouncements about the nature of a state's power to appoint electors should be viewed in the context of that particular case, where the state of Michigan was attempting to appoint its electors based on the votes of an individual district in the state, as opposed to the state as a whole  In contrast to the law at issue in McPherson , with NPV, there appears to be no evidence contemporaneous with the ratification of the Constitution of a state selecting its electors in accordance with the results of the national popular vote  Unlike the State of Michigan in McPherson , an NPV state's electors might not be a product of the views of the state at the time of the election, but instead would reflect national popular sentiment about who should be the President  Moreover, the Supreme Court, in interpreting arguably analogous language from Article I of the Constitution allowing states to regulate the manner of the selection of the Members of the House of Representatives and Senate, concluded that the states cannot exercise their delegated authority in a way that would "effect a fundamental change in the constitutional structure " The question that remains is whether the Court in a future case challenging the NPV compact would interpret the states' authority under Article II to appoint electors to be broad enough to allow the President to be selected as a result of the national popular vote, a question that, given the lack of any precise precedent respecting the constitutionality of the NPV compact under Article II, will likely remain unresolved until such time  Other critics claim the NPV compact might violate Sections 2 and 5 of the Voting Rights Act (VRA)  Writing in Columbia Law Review , David Gringer invokes the voting power theory  He argues that the plan conflicts with Section 2 of the VRA because moving from "a state-based [vote] to a national popular vote dilutes the voting strength of a given state's minority population by reducing its ability [voting power] to influence the outcome of presidential elections " Gringer also asserts that the NPV compact may violate Section 5 of the act  In 2013, however, the U S  Supreme Court invalidated Section 4(b) of the VRA, which contained a formula prescribing which states and jurisdictions with a history of discrimination were required to obtain prior approval or "preclearance" under Section 5 before changing any voting standard, practice, or procedure  Although the Court invalidated only the coverage formula in Section 4, by extension, Section 5 has been rendered currently inoperable  Prior to the Supreme Court ruling, Gringer argued that the NPV compact would qualify as a covered practice under Section 5, and that the legislatures of all the "covered" states would have been required to obtain preclearance before implementing the compact  Responding to this point, National Popular Vote Inc  noted the following: The National Popular Vote bill manifestly would make every person's vote for President equal throughout the United States in an election to fill a single office (the Presidency)  It is entirely consistent with the goal of the Voting Rights Act  There have been court cases under the Voting Rights Act concerning contemplated changes in voting methods for various representative legislative bodies     However, these cases do not bear on elections to fill a single office (i e , the Presidency)  In 2012, the Justice Department's Civil Rights Division specifically declined to challenge California's accession to the NPV compact on VRA grounds  The states' authority to appoint electors by any method their legislatures choose is not absolute  Federal court decisions have struck down state laws concerning appointment of electors that were found to be in violation of the Fourteenth Amendment's guarantee of equal protection: Although Clause 2 (of Article II, Section 1 of the Constitution) seemingly vests complete discretion in the states, certain older cases had recognized a federal interest in protecting the integrity of the process  Thus, the Court upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector     [I]n Oregon v  Mitchell (42 U S  112 (1970)), the Court upheld the power of Congress to reduce the voting age in presidential elections and to set a thirty-day durational residency period as a qualification for voting in presidential elections  Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v  Rhodes , (393 U S  20 1968)) is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment may override state practices that violate that Amendment and may substitute standards of its own  Critics of the electoral college system have sought direct election of the President and Vice President without success for more than two centuries  The NPV initiative represents a novel effort to achieve this goal by use of an interstate compact that would circumvent the stringent requirements necessary for the proposal and ratification of constitutional amendments  Since its inception in 2006, NPV has achieved a degree of success: 14 states and the District of Columbia, controlling a total of 189 electoral votes, have joined the compact since 2008  Progress has arguably been sporadic, however, notwithstanding active campaigning by National Popular Vote Inc  Over the course of more than a decade, NPV has heretofore failed to develop a sustained momentum toward its stated goal of states controlling 270 electoral votes  The action of three states in joining NPV to date in 2019 marks the most activity in a single year since 2008; it remains to be seen whether this trend will continue  To date, certain Democratic-leaning states have joined the compact  The arguable lack of support in Republican-controlled state legislatures raises questions about further accessions to the compact in the immediate future, particularly given the fact that the GOP controlled both legislative chambers in 30 states following the 2018 elections  To date, while the NPV initiative has generated interest among supporters of direct popular election of the President, it does not appear to have gained widespread awareness among the public at large  The findings of the March 27, 2019, Politico/Morning Consult survey cited earlier in this report arguably suggest that greater public knowledge of NPV might spur popular support for the compact  This might then contribute to further momentum if additional states were to join, particularly populous ones like Florida (29 electoral votes), Georgia (16 electoral votes), and Ohio (18 electoral votes) where the compact was under active consideration in 2019  Under these circumstances, proponents might be energized and encouraged by a sense of progress for the initiative  At the same time, NPV opponents could be expected to coalesce around the issues identified earlier in this report, and renew and increase their efforts in defense of the electoral college system  The activities of both might ultimately bring the NPV initiative to the more immediate attention of Congress 

ground_truth: Commonly known for protecting the President, the Secret Service also plays a leading role in investigating and preventing financial and electronic crimes. To accomplish its mission, the Secret Service relies heavily on the use of IT infrastructure and systems. In 2009, the component initiated the IITT investment—a portfolio of programs and projects that are intended to, among other things, improve systems availability and security in support of the component's business operations. GAO was asked to review the Secret Service's oversight of its IT portfolio and workforce. This report discusses the extent to which the (1) CIO implemented selected IT oversight responsibilities, (2) Secret Service implemented leading IT workforce planning and management practices, and (3) Secret Service and DHS implemented selected performance monitoring practices for IITT. GAO assessed agency documentation against 14 selected component CIO responsibilities established in DHS policy; 15 selected leading workforce planning and management practices within 5 topic areas; and two selected leading industry project monitoring practices that, among other things, were, in GAO's professional judgment, of most significance to managing IITT. The U.S. Secret Service (Secret Service) Chief Information Officer (CIO) fully implemented 11 of 14 selected information technology (IT) oversight responsibilities, and partially implemented the remaining 3. The CIO partially implemented the responsibilities to establish a process that ensures the Secret Service reviews IT contracts; ensure that the component's IT policies align with the Department of Homeland Security's (DHS) policies; and set incremental targets to monitor program progress. Additional efforts to fully implement these 3 responsibilities will further position the CIO to effectively manage the IT portfolio. Of the 15 selected practices within the 5 workforce planning and management areas, the Secret Service fully implemented 3 practices, partly implemented 8, and did not implement 4 (see table). Within the strategic planning area, the component partly implemented the practice to, among other things, develop IT competency needs. While the Secret Service had defined general core competencies for its workforce, the Office of the CIO (OCIO) did not identify all of the technical competencies needed to support its functions. As a result, the office was limited in its ability to address any IT competency gaps that may exist. Also, while work remains to improve morale across the component, the Secret Service substantially implemented the employee morale practices for its IT staff. Secret Service officials said the gaps in implementing the workforce practices were due to, among other things, their focus on reorganizing the IT workforce within OCIO. Until the Secret Service fully implements these practices for its IT workforce, it may be limited in its ability to ensure the timely and effective acquisition and maintenance of the component's IT infrastructure and services. Of the two selected IT project monitoring practices, DHS and the Secret Service fully implemented the first practice to monitor the performance of the Information Integration and Technology Transformation (IITT) investment. In addition, for the second practice—to monitor projects on incremental development metrics—the Secret Service fully implemented the practice on one of IITT's projects and partially implemented it on another. In particular, OCIO did not fully measure post-deployment user satisfaction with the system on one project. OCIO plans to conduct a user satisfaction survey of the system by September 2018, which should inform the office on whether the system is meeting users' needs. GAO is making 13 recommendations, including that the Secret Service establish a process that ensures the CIO reviews all IT contracts, as appropriate; and identify the skills needed for its IT workforce. DHS concurred with all recommendations and provided estimated dates for implementing each of them.