It was bound to happen. During Betsy DeVos’ contentious confirmation hearings, she was asked few questions about her evaluation of the Obama administration’s controversial interpretation of the law that bans sex discrimination in schools to include gender identity.
Shortly thereafter, the issue hit the headlines when the Trump administration moved to reverse the Obama administration’s guidelines on transgender students’ access to sex-segregated facilities. Reports swirled that DeVos had objected to the move, which had been favored by Attorney General Jeff Sessions. The administration denied the reports.
This was just the opening round of what is likely to be a long series of acrimonious debates over policy at the Department of Education’s Office of Civil Rights, on topics including sexual harassment, affirmative action, instruction of English language learners and school discipline – even on who might head the agency.
During the Obama administration, this office charged full speed ahead into the nation’s culture wars by imposing on every educational institution in the country novel and detailed mandates based on very broad interpretations of Title VI of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of race and national origin) and Title IX of the Education Amendments of 1972 (which prohibits discrimination on the basis of sex).
This campaign drew a sharp reply from the Republican Party. Its 2016 platform devoted a separate section to Title IX, saying the civil rights office’s “distortion of Title IX to micromanage the way colleges and universities deal with allegations of [sexual] abuse contravenes our country’s legal traditions and must be halted.”
With about 550 employees, the Office of Civil Rights is a small agency with a very broad responsibility. It must ensure that all educational institutions that receive federal funding — which means 14,000 public school districts and more than 7,000 institutions of higher learning — comply with Title IV, Title IX, section 504 of the Rehabilitation Act of 1974 and Title II of the Americans with Disabilities Act, and the Age Discrimination Act of 1976. Since none of these statutes defines what constitutes discrimination, the agency’s power is extensive.
This is hardly the first time that civil rights office has found itself at the center of political controversy. In the 1960s it played a crucial role in dismantling de jure school segregation in the South. In the 1970s and again in the 1990s it aggressively promoted bilingual education, encountering stiff opposition both times. For many years it has interpreted Title IX to require colleges to increase the number of female varsity athletes until their numbers reflect the proportion of female students on campus.
Yet these previous bouts of activism pale in comparison with the initiatives of the Obama civil rights office. It issued far more “Dear Colleague” letters — the form of unilateral regulation favored by the agency — than ever before, and has been aggressive in launching well-publicized investigations of colleges and universities. Since 2010, the civil rights office has issued detailed directives on eliminating racial disparities in school discipline; the allocation of school resources among racial groups; schools’ responsibility for preventing bullying; the use of race-based assignments to achieve diversity,;achieving gender equity in intercollegiate and interscholastic sports, and support for pregnant and parenting students.
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The two most controversial initiatives have come under Title IX: The office’s seven-year effort to combat what it described as an “epidemic” of sexual violence on campus, and its 2016 directive on the right of transgender students to choose restrooms, locker rooms, overnight accommodations and sports teams on the basis of their subjective sense of “gender identity” rather than their biological sex.
Given the Trump administration’s frequently repeated promises to shake up Washington, it is hard to see how it could ignore this office’s web of new regulations. Because the enforcement of the transgender guidelines had already been halted by a federal court, it was the easiest target.
If Secretary DeVos and Attorney General Sessions did argue over the transgender guidelines, it shows there is no consensus within the Administration on how this reevaluation should proceed.
Some have suggested that Office of Civil Rights be taken out of the Department of Education and placed in the Department of Justice. This would not only require statutory change, but would seem to suggest that the civil rights offices of all other departments and agencies also be transferred to Justice, creating one super-office with thousands of employees.
Given the fact that Education’s civil rights office already works closely with Justice — the “Dear Colleague” letter on transgender students was issued jointly by Education and Justice — it is hard to see what would be accomplished by such a massive and disruptive reorganization.
No matter where the civil rights office is located, its twelve regional offices, which employ most of the agency’s personnel, will continue to perform their main task, which is investigating the roughly 10,000 complaints filed with the agency each year. Over half these complaints involve the treatment of children with disabilities; often these involve disagreements over the details of the individualized education plans mandated by federal law. Most of the remainder involve claims of racial discrimination, complaints about the quality of instruction provided English language learners, claims that schools have not provided female students with equal athletic opportunity, and charges that schools have not dealt adequately with sexual violence and other forms of sexual harassment.
No matter what one thinks of the agency’s recent “Dear Colleague letters,” it is hard to argue that the agency should stop investigating these complaints and seeking redress for those that have merit.
So the big questions for the yet-to-be-named assistant secretary for civil rights are these: Which “Dear Colleague”” letters should be targeted for revision? What procedures should the civil rights office use to do so? How radical should these changes be?
In one way, the Obama administration has paved the way for major revisions in its guidelines. Rather than using the standard notice-and-comment rulemaking procedures laid out by the Administrative Procedures Act (APA) and then submitting these regulations to the president for his signature (as required by Titles VI and IX), it has relied entirely on unilaterally announced “Dear Colleague” letters. Their use rests on the transparent fiction that these letters do not “add requirements to applicable law,” but merely provide “information and examples” to schools on “complying with their legal obligations.”
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By ignoring standard rulemaking procedures, the civil rights office avoids subjecting its regulations to public comment and review by other government agencies. Striking a pose similar to the Queen of Hearts in Alice in Wonderland, the Office of Civil Rights welcomes public comments — but only after it has established its policies.
While this makes establishing new rules quicker and easier, it also means it is quicker and easier to rescind those rules. The Supreme Court has held that when an agency uses APA rulemaking to establish a regulation, it can only revise those rules by going through the same lengthy, politically treacherous process. But a “Dear Colleague” letter announced unilaterally can be undone unilaterally.
Turnabout may sometimes be fair play, but in these circumstances it would produce bad policy and even worse politics. That is particularly true for the policies most in need of revision, those on sexual assault and other forms of sexual harassment. These have drawn criticism from a wide array of people and groups who generally support civil rights regulation. These rules threaten both due process of law and freedom of speech. They might have the unintended effect of discouraging the victims of assault from going to the police, who, unlike college administrators, can initiate a process that sends criminals to prison.
The civil rights office’s policies go well beyond anything required by the Supreme Court under Title IX. They also require colleges to create large and expensive “sex bureaucracies” charged with providing ill-defined “training” to virtually everyone on campus.
As troubling as these sexual harassment rules are, it would be hard to find a worse person to challenge them than the current president of the United States. He has bragged about committing actions that clearly constitute sexual assault. He has shown little respect for the rule of law and no understanding of the separation of powers. He seems addicted to government by decree. Facts are what he says they are. All the rest is only “fake news.” What a terrible education for our children!
The incoming leaders of the civil rights office will have a chance to improve its regulations, but only if they willing to be everything our President is not. Rather than act precipitously and unilaterally, they should demonstrate their commitment to the rule of law and public participation by following APA’s notice-and-comment rulemaking procedures. They should use collect reliable information on such matters as the prevalence of sexual assault on campus and the effectiveness of proposed remedies. They should invite debate rather than shove disagreements under the rug, as the civil rights office has so often done in the past. They should show respect for Supreme Court interpretations of civil rights law, rather than devise clever end-runs around them.
In the short run this will provoke intense controversy. In the long run, though, it will subtly shift the culture of the civil rights office to make it more knowledgeable, more analytical, more respectful of local differences and less impressed by its own self-righteousness.
Is this too much to expect of the Trump administration? Given its disgraceful performance so far, probably so. But much depends on who leads the office and how much support that person gets from Secretary DeVos. They should keep in mind Mark Twain’s aphorism: “Always do right. This will gratify some people and astonish the rest.” Please astonish us.
R. Shep Melnick is the Thomas P. O’Neill, Jr. Professor of American Politics at Boston College and author of a forthcoming book on Title IX.