Last month, something happened at the federal Department of Ed, and I wanted to give it some attention here because it is not good. First a little background – You may know or remember from an earlier post that Candice Jackson is currently the head of the DOE’s Office of Civil Rights, despite having no background at all relevant for the office. Her official title is Acting Assistant Secretary for Civil Rights, but she’ll remain the director of the OCR until Trump appoints a full-time Assistant Secretary of Education, which requires Senate approval, so it will never happen.
Her office is very important, though – it’s in charge of ensuring that schools receiving federal funding do not violate federal civil rights law, including discrimination based on race. When the OCR receives complaints about civil rights violations, it conducts an investigation and, where necessary, enters into formal agreements to remedy the issue (more about that below).
In 2016, the office received 16,720 complaints, setting a new record. There are tons of examples that you can read about here, organized by civil rights statute. Or, you can use this search function from the OCR website. Discipline issues are common, as are cases of discrimination against ELL students and their teachers. In some cases, black students were blocked from higher-level coursework or were overrepresented in special education. Then, there’s many cases regarding sexual harassment. And, also many examples of discrimination against people with disabilities.
Especially considering Jackson’s generally anti-government point of view (see: this country song that she co-wrote with her dad), many were concerned about harmful changes to civil rights enforcement under her leadership. Those fears took shape a few weeks ago when she sent this memo (obtained by ProPublica), which changes the following rules for civil rights investigations:
- Data required for each investigation: Reduced from 3 years to only the specific instances of the case under investigation
- The Obama DOE typically sought at least three years of prior data when investigating an individual civil rights claim. Catherine Lhamon, who was Assistant Secretary under Obama, explains in the ProPublica article that “it’s important to take an expansive view of the potential for harm because if you look only at the most recent year, you won’t necessarily see the pattern” (see example below).
- The new guidelines, however, “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.” This is discontinued unless the complaint itself is of a historical/long-standing nature or if the OCR investigator can convince others that a more extensive investigation is required. And, it takes effect immediately and applies to all cases currently under investigation.
- Preference for voluntary agreements instead of more formal consent decrees/arrangements
- As noted earlier in the same ProPublica article, consent decrees or other formal arrangements can be monitored by courts over time, whereas voluntary settlements “aren’t overseen by a judge and have no built-in enforcement mechanism.” Consent decrees are perhaps more well-known in the context of police discrimination and racial profiling, as police departments entered into formal arrangements with the Obama DOJ in high-profile places like Ferguson. You know consent decrees are a good thing because Jeff Sessions hates them and ordered a sweeping review of existing decrees, likely with the intention of rolling them back. Jackson’s memo explicitly directs her office to “encourage voluntary settlements wherever possible.” This, from the so-called “law and order” President.
The DOE has defended itself, saying that the 3-year requirement was too time-consuming. They claim the changes will allow them “to swiftly address compliance issues raised by individual complaint allegations [and] reach reasonable resolution agreements.” But, this doesn’t make sense. At the same time that they are claiming to “[give] every complaint the individualized and thorough consideration it deserves,” DeVos has proposed to cut 7 percent of the OCR budget, including more than 40 positions. Ed Week estimates that this would lead to a caseload of 42 civil rights complaints per staff member, which is completely unmanageable.
Meanwhile, the people who like this change are the ones who criticized the Obama administration for doing too much about things like sexual assault on college campuses or for offering protections that allow transgender students to use the bathroom that matches their gender identity.
There’s been some response. The decision quickly came under criticism from Senator Patty Murray, the top Democrat on the Senate education committee, and 64 Democrats in the House and Senate signed a letter expressing concern about the commitment to civil rights protections at the DOE. Also, the US Commission on Civil Rights, an independent agency now led by Lhamon, will investigate how the Trump administration handles civil rights issues. It has no power to enforce any of its recommendations, but of course something like this can be useful for congress or for public advocacy. It’s a two-year investigation that spans multiple agencies within the Trump administration.
This may seem minor or wonky, but it is a big deal because the OCR investigates some pretty serious claims. Here’s one quick example – In Lodi Unified School District (in CA) a black student was disciplined more harshly than a white student after the two got into a fight. A complaint led to an investigation that reviewed four years of data across the entire district, and you are probably guessing that it found disproportionately higher rates of punishment for black students across the district and over time. For example, “African-American students were 6.84 times more likely than white students to receive an in- or out-of-school suspension for tardiness or truancy in 2014-15, even though suspending students for tardiness or truancy is not permitted by California state law” (full report here). The district and OCR then developed a resolution, which includes an agreement to “adopt student-focused remedies including a system of research-based student supports and interventions, as well as early intervention for at-risk students.” It goes without saying that an investigation that was only limited to the particular instance of the one fight between two students would not have had nearly the same impact.
The country song that Jackson wrote with her dad is called “Freedom, Family, and Faith,” and it includes the lyrics: “Some politician wants our liberty/ They say just trust me, we’re all family/ I’ve got a family and hey, it’s not you/ Don’t need Big Brother to see us through.” This was likely fun for them to say in the song, but it’s incredibly harmful when applied to a large government agency that is required to enforce civil rights law in protection of vulnerable students and families who have experienced generations of discrimination.