Education Secretary Betsy DeVos’ testimony during Congress’ first oversight hearing in nearly a year and a half of her tenure confirmed the crisis moment at which the nation now teeters with respect to civil rights in education.
After repeated past failures even to commit that the federal Department of Education would enforce federal civil rights laws in schools, Secretary DeVos inexplicably claimed during this month’s oversight testimony that local school administrators retain a choice whether to refer undocumented students and their families to immigration enforcement — even after acknowledging longstanding U.S. Supreme Court precedent holding that our nation’s schools constitutionally must educate students who lack legal status in this country equally with their citizen peers.
To be clear: Local schools do not have lawful discretion to refer students or families to immigration enforcement, and so doing would violate decades of clear civil rights law.
DeVos’ failure to stand for core equity principles extends to all aspects of the education opportunity she is charged with safeguarding for the more than 50 million students in the nation’s P-12 schools and 20 million students in colleges and universities. For just one other chilling example, during the same testimony, DeVos said she would not “make up law” to protect transgender students’ civil rights in schools, notwithstanding the many federal courts that have already ruled she must do exactly that (protect the students, not make up law). On the very same day she so testified, still another federal court ruled that discrimination claims based on transgender status are per se actionable under the federal law protecting against sex discrimination in school. The courts’ clarity about equity should guide the Secretary of Education, but she rejects it.
The secretary’s revealing testimony underscores her consistent actions since taking office, stripping students of equity protections that Congress has guaranteed to them for longer than I have been alive. The Department of Education in the Trump administration repeatedly undermines civil rights, contrary to its Congressional charge. (In fact, during her Congressional testimony, DeVos could not even articulate the mission of her Office for Civil Rights, testifying that she had “not memorized” it.)
The department is reported to have marginalized, reassigned or instructed to focus on other matters the team of investigators who previously worked on operating effective controls against financial fraud for vulnerable students. Ceasing the important work of making defrauded students whole runs directly counter to the equity mission of the department.
Similarly, rather than driving forward with an urgent response to persistent data reflecting that students of color with disabilities are subject to exclusionary school discipline at rates wildly disproportionate to their student population numbers, DeVos seeks a two-year delay to contemplate further a problem that Congress charged the department to address 14 years ago.
The Trump administration’s response to the rash of deadly school shootings has been to create a commission, headed by DeVos, charged specifically with making recommendations on the repeal of existing policies regarding non-discrimination in school discipline. That announcement alone signals to the broader education community that compliance with non-discrimination laws in this area is now optional. It is deeply dangerous to send a message that satisfaction of the nation’s core civil rights principle — prohibiting discrimination against Americans on the basis of race — is merely an aspiration, not a mandate.
For students with disabilities, DeVos crushes even their aspirations. In her tenure, the department has closed or refused to open hundreds of cases regarding disability rights, not because the cases lack validity but because the complainants who filed them filed some unspecified number of other claims in addition. This practice places an arbitrary limit on justice, turning the federal government’s back on evidence of discriminatory harm to students, and signaling that the department is not reliably open for business for students with disabilities.
Our nation’s students deserve better. These federal actions, among others, low-light a crying need for renewed commitment to strong federal civil rights enforcement. The clearest indicators so far during the first 16 months of the Trump administration suggest inattention to, and often direct contravention of, core civil rights commands that Congress has over decades directed to the Department of Education. The nation’s students deserve vigilance to correct those practices, with, as Dr. King put it, the fierce urgency of now.
Catherine E. Lhamon chairs the U.S. Commission on Civil Rights and is of counsel at the National Center for Youth Law. Lhamon was previously Assistant Secretary for Civil Rights in the U.S. Department of Education.