Under President Barack Obama’s administration, the role of the Education Department’s Office for Civil Rights, which is responsible for ensuring equal access to education, was largely expanded. It has become clear, a year and a half into the Trump administration, that Education Secretary Betsy DeVos is transforming the agency once again.
The Office for Civil Rights is tasked with the “vigorous enforcement of civil rights.” Its laws apply to public schools and universities that receive agency funding, and they cover discrimination based on race, gender, disability and age.
Since becoming education secretary, DeVos has reshaped the agency by narrowing its approach to racial discrimination and civil rights enforcement. The department is also moving away from the notion, embraced during the Obama years, that discrimination often occurs even if the people involved have no ill intent and that schools should be held accountable when outcomes differ by race.
That ethos has culminated in a couple of high-profile decisions this summer, including:
• Delaying for two years a regulation aimed at ensuring that school systems are not disproportionately channeling students of color into special-education programs, a practice that studies suggest is widespread.
• Revoking Obama-era federal guidance on affirmative action that had encouraged colleges and public schools to find legal ways to use race in admissions and enrollment.
• Considering repealing documents that direct districts to examine whether they are delivering tougher punishment to African American students than to others.
“We enforce the laws that Congress passes as written and in full — no less and no more,” said Kenneth Marcus, who was recently confirmed as assistant secretary of education for civil rights. “We are law enforcement officials, not advocates or social justice people.”
To understand why these changes are substantive, it’s important to look at the office’s evolution over the past two administrations.
During the Obama administration, the Office for Civil Rights took an expansive approach, and not just on race. It developed what the government calls “guidance documents” protecting the rights of transgender students and bolstering victims of sexual assault on college campuses. DeVos rescinded both. She said state and local officials should develop their own guidelines for transgender students and said the Obama sexual assault rules were weighted too heavily against the accused.
On race, the Obama administration encouraged diversity and sought to thwart intentional and unintentional discrimination. It aggressively investigated civil rights complaints, looking for patterns of discrimination.
In 2013, for instance, the Education Department was asked to investigate an allegation that a black student in the Lodi Unified School District in California was disciplined more harshly because of his race than a white student after an altercation between them.
The investigation examined four years’ worth of discipline data and found widespread discrimination based on race. The agency discovered that black students in the California district were overrepresented at almost every level of discipline in every year analyzed.
The school system agreed to increase training and work to close racial disparities.
Under Obama, complaints filed with the Office for Civil Rights soared, creating a huge backlog.
During her first months in office, DeVos called for a $3.8 million reduction in the agency, including the elimination of about 40 positions. The Republican-controlled Congress rejected her plan and actually increased funding for the office.
Around this time, too, the Office for Civil Rights circulated a memo to agency investigators. They were no longer required to consider “systemic” bias when presented with a single claim of discrimination. Instead, the agency’s goal was to swiftly rule on individual complaints.
For conservatives, these changes represent what they say is a much-needed rollback of an overly aggressive predecessor. They say the Obama administration tried to impose its own preferences, supplanting local decision-making.
They also argue that forcing schools to make policy based on a racial analysis of the outcomes can lead officials to inject race into what had been race-free decision-making and can even lead to quotas based on race for discipline and other policies.
“The Obama administration was basically saying, ‘Even if there’s no evidence of discrimination or implicit bias, you can still be found guilty of violating kids’ civil rights,’ ” said Michael Petrilli, president of the conservative Thomas B. Fordham Institute. He said a range of factors help explain different outcomes, including poverty, family structure and neighborhoods. “It would be naive to think we’re not going to see racial differences when the experiences kids are having vary so dramatically.”
The agency also rewrote the guidebook that civil rights investigators use, known as the “case processing manual.”
The new version eliminated all references to “systemic” issues. It also said complaints would be rejected if they were filed by people who submitted large numbers of complaints. In practice, officials said, the provision was aimed at just a few “frequent fliers” who jam up the system.
That included a disability rights activist who filed thousands of complaints about the accessibility of websites to people who are blind or otherwise have trouble accessing the Internet.
The decision prompted the NAACP and two other groups to file a lawsuit that argued that the department’s procedures were “arbitrary and capricious.”
Education Department officials say the changes have allowed the agency to reduce its backlog of cases, which stood at 9,275 on Jan. 20, 2017, the day Trump was inaugurated. It had been reduced to 6,026 as of Friday.
Data show that the portion of cases closed with the department ordering schools to take action was 8 percent in fiscal year 2017, which includes more than eight months of the Trump administration and the end of the Obama administration. That was the same percentage as the prior year.
Marcus, the new civil rights chief, said that systemic investigations are still opened when appropriate but that the office is doing a better job of quickly resolving individual complaints. Many people, he said, had lost confidence in the agency’s ability to produce a timely response. “Justice delayed is justice denied,” he said.
DeVos has sometimes drawn criticism for comments about civil rights. In May, under questioning from Rep. Marcia L. Fudge (D-Ohio), the secretary appeared unable to explain the mission of the her agency’s Office for Civil Rights. Asked what she would consider “vigorous enforcement of civil rights in the context of schools today,” DeVos replied, “It would be following the law and enforcing the law as stated.”
Critics say the DeVos approach amounts to an abdication of the agency’s responsibility to ferret out discrimination and ensure equal protection for all students.
“If you don’t look [for discrimination], you won’t find it,” said Catherine Lhamon, who led the Office for Civil Rights in the Obama administration. “Their goal is to have fewer people do less work, be less involved — which will mean, as a practical matter, less justice.”
The next big decision the department faces is whether to rescind a 2014 document aimed at ensuring districts do not punish black and Latino children more harshly than white students.
In publishing the guidelines, the Obama administration relied on a legal concept called “disparate impact analysis,” which attempts to root out unintentional discrimination by looking for policies that are neutral on their face but unequal in result.
That type of analysis has been advocated by liberals, who say it is necessary to discover discrimination when it is not always visible. But it is spurned by conservatives, who say other factors may explain unequal outcomes.
That includes Marcus, who has long argued for a more modest interpretation of civil rights statutes than the Obama administration applied. He has said the Obama approach can lead institutions to inject racial considerations where none existed, to prevent uneven results.
“If our goal is to eliminate discrimination, which I think is what it should be, then this takes us down a different track and not necessarily the right one,” he said at a 2013 panel discussion sponsored by the Federalist Society, a conservative legal group.