On its own, it was a small move. But a year and a half later, it is clear the 2017 memo marked the start of a steady march toward narrowing the agency’s approach to racial discrimination and civil rights enforcement.
The new approach stems from a view that the administration of President Barack Obama stretched beyond the law in setting rules and guidelines for schools and opened so many discrimination investigations that the system became clogged with cases.
Under Education Secretary Betsy DeVos, the agency is also moving away from the sweeping 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.
“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.”
The transformation is culminating this summer with important policy changes. In late June, the agency delayed for two years a regulation aimed at ensuring school systems are not disproportionately channeling students of color into special-education programs, a practice that studies suggest is widespread.
Then, the Trump administration revoked 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.
Now, the department is considering repealing documents that direct districts to examine whether they are delivering tougher punishment to African-American students than to others.
At the same time, DeVos has persisted in trying to chop personnel spending in the Office for Civil Rights.
During her first months in office, she called for a $3.8 million reduction, including elimination of about 40 positions, part of a recommendation for cuts across the department. The Republican-controlled Congress rejected her plan and actually increased funding for the office. A similar scenario is unfolding this year, with lawmakers rebuffing DeVos’s call for cuts.
The movement to narrow discrimination enforcement reflects a broader ethos at work in the Education Department under DeVos, who has sought to reduce federal control over schools, saying oversight is best done by local communities and states.
For conservatives, the 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 there are a range of factors that 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 experience kids are having vary so dramatically.”
DeVos has sometimes drawn criticism for comments on civil rights. In May, under questioning from Rep. Marcia Fudge, D-Ohio, the secretary appeared unable to explain the mission of 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 department’s Office for Civil Rights is responsible for ensuring equal access to education and the “vigorous enforcement of civil rights.” The laws apply to public schools and universities that receive agency funding, and they cover discrimination based on race, gender, disability and age.
During the Obama administration, the office 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 attending 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.
The Trump administration dialed back enforcement.
In the June 2017 memo to investigators, the civil rights office’s acting director, Candice Jackson, directed her staff to stop routinely expanding complaints of individual discrimination into “systemic” probes that might turn up a pattern of bias, as the agency did in the Lodi case. She said officials no longer had to review three years of data related to each discrimination complaint – a move necessary, the agency said, to shrink the backlog and more quickly resolve cases.
Next came a rewrite of 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 a lawsuit by the NAACP and two other groups, which argued that the department’s procedures were “arbitrary and capricious.”
Following those changes, investigations such as one in Cedar Rapids, Iowa, were pared back. In Cedar Rapids, the agency investigated allegations that the district punished two black students more harshly than white students for similar behavior. Under Obama, the agency had begun investigating whether there was more widespread discrimination. But in December, the agency told the Iowa school system that part of the inquiry had been dropped. In March, the government closed the case, finding no civil rights violations.
That upset Rebecca Grant, who identified herself as the parent who lodged the original complaint and who gathered testimonials from other parents and students to support her case. She blames Trump policies for the outcome. In a letter to an official with the civil rights office, Grant wrote that it was “sad” that the new administration had thrown “people up under the bus.”
The official emailed back saying the department made its decision based on the facts of this case but acknowledged that the office’s approach had shifted regarding the broader investigation. “New administrations bring changes,” the official wrote. “This is true of all administrations.”
The administration’s decision not to seek any changes after investigating for four years came as a surprise even to the school system, according to an account in the Cedar Rapids Gazette. Corrective action is “not uncommon when there’s an investigation done, that they would ask you to do some review,” Mary Ellen Maske, who was the deputy superintendent at the time, told the newspaper. “They have not asked us to review or change anything.”
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.
Department spokeswoman Elizabeth Hill added that more cases are being closed with schools agreeing to take action than there were under Obama. She did not provide statistics on how many cases are being closed without such agreements.
Marcus, the new civil rights chief, said that systemic investigations are still opened when appropriate but that the office is doing a better job 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.
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 application.
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.
He said he would use this analysis but only as a starting point. “My view is it’s a kind of smoke to look at to see if there is fire,” he said. “Others would say it is the fire itself.”
First published by The Washington Post
