Trump-DeVos Department of Education Cuts Back Civil Rights Enforcement

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….”

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U.S. Department of Education Takes First Step toward Regulating Charters

Last week something important happened, “finally,” as Valerie Strauss emphasized in her Washington Post report.  The U.S. Department of Education’s Office of Civil rights issued new guidance confirming that charter schools must comply with the same civil rights protections as public schools.

As quoted by Education Week, Assistant Secretary for Civil Rights Cathrine E. Lhamon issued the following: “I am writing to remind you that the Federal civil rights laws, regulations, and guidance that apply to charter schools are the same as those that apply to other public schools.  For this reason, it is essential that charter school officials and staff be knowledgeable about federal civil rights laws.  These laws extend to all operations of a charter school, including recruiting, admissions, academics, educational services and testing, school climate (including prevention of harassment), disciplinary measures (including suspensions and expulsions), athletics and other nonacademic and extracurricular services and activities, and accessible buildings and technology.”

While Education Week‘s Evie Blad explains that the new guidance applies particularly to admissions, provision of services for students with disabilities and English language learners, she continues:  “In addition to those areas, charter schools should ensure their policies and practices comply with all federal civil rights law, including Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin; Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex; and Title II of the Americans with Disabilities Act of 1990, which prohibits discrimination based on disability.”

Does the new guidance mean that the Office of Civil Rights of the U.S. Department of Education has the enforcement capacity to tour the country examining the policies and practices of the thousands of charter schools that may be violating the civil rights of their applicants or their students?  No.  The U.S. Department of Education does not maintain an enforcement staff.  The guidance, however, will strengthen the Department’s capacity to respond to formal complaints submitted to its Office of Civil Rights.

Several organizations that have been fighting for the rights of children in charter schools praised the Department’s release of the new guidance.  The new guidance will strengthen the case of organizations that have already filed formal civil rights complaints about alleged violations, and it will encourage others to be aggressive in seeking enforcement of federal civil rights law.

The Southern Poverty Law Center—which filed a lawsuit in New Orleans in 2010 on behalf of students with severe disabilities who had been unable to secure appropriate placement in the city’s schools post-Hurricane Katrina, after the traditional school district was radically transformed and largely charterized—comments on the new guidance: “This action is especially important in New Orleans, where we’ve filed suit over the widespread failure of charter schools to provide appropriate educational services to children with disabilities.”

Advancement Project, which has led a national protest movement about the racially discriminatory overuse of harsh discipline practices like expulsions and suspensions, commented:  “We applaud DOE’s announcement today regarding charters—particularly DOE’s emphasis that its previous guidance on the legal and educational risks posed by harsh disciplinary measures, such as suspensions and expulsions, applies fully to charters.”

And the Leadership Conference on Civil and Human Rights wrote: “We applaud the Department of Education for releasing this very important, long-overdue guidance, which makes crystal clear that charter schools—like all public schools—have a federal obligation to ensure that all children, regardless of race, national origin, sex, or disability status, receive a fair and equal opportunity to succeed.  This guidance is the first since the Clinton administration to clarify the responsibilities charter schools have under federal civil rights laws.”

At a meeting with Secretary of Education Arne Duncan I attended several years ago, he said, “Good charter schools are part of the solution.  Bad charter schools are part of the problem.”  Despite that his Department required all states submitting proposals for Race to the Top to remove any statutory caps on the authorization of new charter schools, and despite that his Department provides funding for support and expansion of charter schools, his Department of Education has taken no steps until now to promote regulation of charter schools for the purpose of protecting their students’ rights.

Groups across the country that seek to protest what they believe are blatantly discriminatory practices by charter schools will now, based on the Departmental Guidance released last week, have a greater chance of ensuring that civil rights violations are addressed.