OCR: Don’t Give Up the Fight
July 24, 2017
In recent weeks, multiple sources, including Senator Patty Murray (D-WA) and the Washington Post editorial board, called for the resignation of Candice Jackson, the acting head of the Office for Civil Rights (OCR) at the U.S. Department of Education (Department). Jackson came under intense criticism for outrageously and erroneously claiming in an interview with the New York Times that “90 percent of [campus rape cases] — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’” Jackson quickly apologized, but this was only the latest in a string of missteps on civil rights at the Department stretching back to the beginning of Secretary DeVos’ nomination process.
OCR is the agency within the Department responsible for effectively enforcing civil rights laws and ensuring there is no discrimination on the basis of race, national origin, sex, age, and disability in federally assisted education programs. Title IX, which protects students against gender-based discrimination, and the Individuals with Disabilities Education Act (IDEA), which protects the rights of students with disabilities, are two of the best known laws that OCR is responsible for enforcing.
In her first public appearance as a nominee before the Senate HELP Committee, Jackson’s boss, Secretary of Education Betsy DeVos, stumbled badly on the role of the federal government generally, and specifically regarding the agency she was about to lead. When asked by Senator Kaine (D-VA) if all K-12 schools (public, public charter, or private) receiving funds from taxpayer dollars should be required to meet the requirements of IDEA, DeVos answered and affirmed, “I think that is an issue best left to the states.” At a Senate Appropriations subcommittee hearing DeVos later clarified these remarks, stating 14 times, “Schools that receive federal funds must follow federal law.” However, those hoping that DeVos was merely at the beginning of a steep learning curve as she assumed her duties as Secretary would be deeply disappointed.
As if her mind had been wiped clean of her misstatements and subsequent corrections on disability issues, in an interview after her confirmation, DeVos stated: “I mean, when we had segregated schools and when we had a time when, you know, girls weren’t allowed to have the same kind of sports teams — I mean, there have been important inflection points for the federal government to get involved.” When the interviewer pressed, “But are there any remaining issues like that where the federal government should intervene?” DeVos replied, “I can’t think of any now.”
Earlier this year, Sunil Mansukhani, Deputy Assistant Secretary for Civil Rights under President Obama, laid out a set of policies he thought reflected bipartisan common ground on civil rights issues. In this age of emerging innovations in technology, Mansukhani appeals to the new administration to “provide schools and colleges with the tools to combat cyberbullying.” Perhaps OCR could partner with First Lady, Melania Trump, who called cyberbullying a top priority in her address to the American people during the campaign, but has said and done little about the issue since. Similarly, Mansukhani calls for the continuation of steps taken by the Obama administration to “ensure emerging technology is accessible to students with disabilities.”
In addition to investigating and resolving discrimination complaints against educational institutions, OCR is responsible for issuing policy guidance, providing technical assistance, and publishing important civil rights data. Mansukhani calls for the Secretary to “promote transparency by continuing the Civil Rights Data Collection” (CRDC) – a biennial survey of public schools that looks at barriers to educational opportunity. The CRDC is critically important and actually predates the Department. Some components of the CRDC are now embedded in the Every Student Succeeds Act (ESSA), such as the rates of in-school suspensions, referrals to law enforcement, instances of bullying of harassment, the number of students enrolled in accelerated courses, the number of inexperienced teachers, and per-pupil expenditures – all of which must be made public on state and school report cards.
While fighting cyberbullying, meeting the learning needs of students with disabilities, and collecting standard civil rights related data appear uncontroversial and free of partisan interest, don’t be surprised if DeVos goes in an opposite direction. Almost immediately after assuming their posts, Secretary DeVos joined Attorney General Jeff Sessions and revoked guidance issued by the Obama Administration protecting the rights of transgender students – an action they justified on a legal defense and states’ rights basis.
In a recent letter to Senator Murray, DeVos made her views clear that OCR “had descended into a pattern of overreaching, of setting out to punish and embarrass institutions rather than work with them to correct civil rights violations.” DeVos has already rolled back OCR’s regular practice of probing further into civil rights complaints for evidence of larger, systemic violations, so future rollbacks to any number of students’ civil rights protections should come as no surprise. When asked during her confirmation hearing whether all schools should be required to report discipline data, included in the CRDC, DeVos said “I would look forward to reviewing that provision.”
For insights into what students’ civil right protections might be next on the chopping block, the terrifying answer is all of them. Executive Order 13777, signed by President Trump, sets out to alleviate “unnecessary regulatory burdens” and establish agency-by-agency task forces to review existing regulations. Last month, DeVos requested input on over 150 rules and more than 1,700 pieces of policy guidance “that may be appropriate for repeal, replacement, or modification.”
On the list for review under the jurisdiction of OCR are assurances that that no person face discrimination because of race, color, or national origin (Part 100), the requirement that schools afford students with disabilities equal opportunities as their non-disabled peers (Part 104), and of course, the enforcement of Title IX which includes student protections against sexual harassment, including sexual violence (Part 106). A complete list of Department regulations can be found here.
Comments can be submitted through the Federal eRulemaking Portal and are due August 21. Democrats for Education Reform is on the ground in seven states and Washington, DC and want to hear what you have to say. You can reach us at firstname.lastname@example.org or contact me directly at email@example.com.
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