The U.S. Department of Education’s Office for Civil Rights (OCR) appears to be retreating from aggressive civil rights enforcement when complaints are made. When such complaints were filed during the Obama administration, the OCR examined three years worth of data from the school district where the complaint had been filed to try to uncover any systemic pattern of the violation of students’ rights. The Office of Civil Rights under Betsy DeVos now says it will expedite the processing of complaints by responding only to the individual complaint itself.
ProPublica explains the shift in enforcement strategy in a report released last week: “Under the Obama administration, the department’s office for civil rights applied an expansive approach to investigations. Individual complaints related to complex issues such as school discipline, sexual violence and harassment, equal access to educational resources, or racism at a single school might have prompted broader probes to determine whether the allegations were part of a pattern of discrimination or harassment.”
ProPublica describes the new enforcement policy as described in a recent memo sent by Candice Jackson, DeVos’s acting secretary for civil rights, to regional OCR directors. No one has been nominated for full-time assistant secretary for civil rights, a position that would require confirmation by the Senate. ProPublica summarizes the new enforcement policy: “The office will apply the broader approach ‘only’ if the original allegations raise systemic concerns or the investigative team argues for it… As part of the new approach, the Education Department will no longer require civil rights investigators to obtain three years of complaint data from a specific school or district to assess compliance with civil rights law.” ProPublica continues: “The department’s new directive also gives more autonomy to regional offices, no longer requiring oversight or review of some cases by department headquarters….”
Candace Jackson has defended the new enforcement policy as designed to resolve cases more quickly and eliminate a backlog of long-running investigations. Reporting for the NY Times, Erica Green explains that many civil rights advocates worry that shallow investigations will fail to uncover injustice: “But civil rights leaders… say that Education Department staff members would be discouraged from opening cases and that investigations could be weakened because efficiency would take priority over thoroughness.”
Catherine Lhamon, Assistant Secretary for Civil Rights in the U.S. Department of Education during the Obama administration, now leads the U.S. Commission on Civil Rights, a watch-dog, independent agency without enforcement power, that advises Congress and the President about civil rights concerns. Alyson Klein reports for Education Week that last week, the U.S. Commission on Civil Rights “launched a two-year investigation into civil rights practices at several federal agencies under the Trump administration, including the U.S. Department of Education.” Other federal Departments targeted by this investigation are Justice, Health and Human Services, Labor, and Housing and Urban Development.
Klein explains: “When it comes to the Education Department, the commission is concerned that Trump’s budget calls for slashing staff at the office for civil rights by 7 percent, or 46 full-time employees. The commission worries that this could lead to an ‘untenable caseload’ of 42 cases per staff member.”
The Washington Post‘s Emma Brown also reports that the Department of Education’s Office for Civil Rights has withdrawn guidance issued during the Obama administration guaranteeing transgender students the right to use bathrooms and locker rooms that correspond to their gender identity. Candace Jackson has “directed its lawyers to consider transgender students’ discrimination complaints on a case-by-case basis.”
Brown describes one staff person at the OCR who remains confident that the new guidance will not reduce protections for transgender students: “One OCR employee, who was not authorized to speak to media and spoke on condition of anonymity, said the memo was a ‘green light’ to move forward with discrimination complaints from transgender students—including those concerning bathroom access.”
However, Brown interviews GLSEN’s executive director, Eliza Byard, who is more skeptical: “But what happens if a transgender student’s complaint is handled by an official who does not believe bathroom access is an issue worthy of investigation?”
In a follow-up article, Emma Brown reports that the Department of Education has now closed two cases involving transgender students: “Officials withdrew the findings of discrimination, (Candace) Jackson said, because those findings were based on guidance that directed schools to allow transgender students access to bathrooms matching their gender identity The Trump administration rescinded that guidance….”