On January 13, the Trump Education Department’s Office for Civil Rights (OCR), which I headed earlier in the administration, released its Annual Report to the Secretary, the President, and the Congress for fiscal year 2020. In doing so, my successor, Acting Assistant Secretary Kimberly Richey, moved with impressive speed to report on last year’s accomplishments. The Annual Report shows that Richey and her team have done impressive work, even under COVID-complicated circumstances, to execute on policies formulated earlier in the administration. This Report, like the ones I issued last March and July, show that the reality of civil rights enforcement in this administration has been very different than what is generally portrayed. Here are ten highlights:
First, OCR’s efficiency increased dramatically in recent years, which has meant better and faster service for children and families, as well as for schools and colleges. Over the last four fiscal years (2017-2020), OCR resolved 52,700 complaints. That exceeds by more than 15,000 (or roughly 28%) the number that the Obama administration resolved during its last four years before leaving a 10,000-case backlog for its successors to clean up. This confirms the analysis that I presented, based on last year’s data, in this Wall Street Journal article.
Second, OCR has had more impact lately. While previous administrations spoke more eloquently about their commitment to civil rights, the current OCR has achieved better results for children and their families. Specifically, OCR resolved 6,018 complaints “with change,” meaning that it required schools to correct discriminatory conditions. This represents a 1,500+ (or roughly 25%) increase over the previous administration’s performance during a comparable timeframe. In other words, OCR corrected far more discriminatory environments in schools during the last four fiscal years as compared to the Obama years.
Third, OCR completed its Title IX rulemaking and presented the incoming administration with a formidable challenge. President-elect Biden has said that he intends to roll back the new Title IX regulation. This will be a difficult lift, since rescission will need to go through the same arduous Administrative Procedure Act notice-and-comment process under which Secretary Betsy DeVos passed this rule. Worse, rescission could undermine both the due process advances of the DeVos rule and the new protections for victims – as I explained here in Newsweek.
Fourth, OCR was historically active in investigating sexual violence, not only completing major investigations at large universities such as Michigan State University, Pennsylvania State University, and the University of Southern California, but also raising alarms about sexual violence in the public schools, especially Chicago.
Fifth, OCR has entered into significant resolution agreements to address anti-Semitism in higher education – a problem that has long been under-investigated. The Report highlights one case in which Jewish students alleged multiple instances of harassment, including one in which a student fell to the ground after a hostile mob surrounded her and called her names. The university agreed to tighten its policies, procedures, and training and, significantly, to adopt Executive Order 13899 (the “Executive Order on Combating Anti-Semitism”).
Sixth, OCR has opened investigations into a series of race cases involving discrimination or harassment with might be called a “woke” twist. These cases appear to be ongoing, which means that they will likely be left to the next administration to resolve. In one, a Chicago-area schoolteacher alleges that the district’s racial “equity” programs unlawfully segregate staff and students into affinity groups based on race; use Black Lives Matter materials to teach that white people bear collective guilt for racism, police brutality, and other social problems; and discipline students differently based on their race. In another, a Kentucky university allegedly segregated its incoming resident assistants by race for training purposes, giving different training to students based on their race.
Seventh, OCR has taken a more nuanced position on LGBTQ cases, in light of Bostock v. Clayton County, than is generally recognized. In Bostock, the Supreme Court held that discrimination against employees based on sexual orientation or transgender identity could amount to sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The Court emphasized that its opinion did not reach other statutes, like Title IX. OCR extended the Bostock holding in its Shelby County Schools case, ruling that Bostock compelled protection of a high school student who was denied the captaincy of her school’s color guard based on her sexual orientation. At the same time, OCR declined to extend Bostock to cases in which women claimed that their athletic opportunities are limited by the participation of biological males in women’s sporting events. OCR sides with the women complainants in these cases, reasoning that Title IX differs from Title VII in that the former statute was drafted in significant part to protect women’s athletic opportunities.
Eighth, OCR pursued civil rights claims by students of any background, without cherry-picking cases that supported a particular agenda: cases brought by women as well as men, Asian Americans as well as African Americans, Jewish as well as Muslim students, and gay as well as straight students. For example, OCR highlights one case against a girls-only summer STEM program that excluded boys, as well another against a school that provided fewer athletic opportunities to girls. This approach, which protects both sexes against exclusionary or unequal policies, is reflected in new guidance that the Department issued on January 14.
Ninth, OCR has continued its regulatory reform project throughout this year. In August 2020, for example, OCR rescinded Clinton-era guidance regarding the use of race in college admissions and financial aid. OCR explains that this guidance, while outdated, promoted policy preferences regarding affirmative action that are inconsistent with current law. OCR had rescinded Obama-era guidance on this topic in 2018 on ground of regulatory overreach.
Tenth, OCR has responded to COVID with an unusually robust set of guidance, including early and repeated instructions for how schools can comply with Education Department regulations. This includes guidance relating to anti-Asian harassment, accommodations for students with disabilities, online accessibility, and other civil rights issues.
In these ten respects, and in others, Acting Assistant Secretary Richey’s report portrays an agency that has become significantly more efficient and effective over the last four years, while rejecting regulatory overreach, applying law evenhandedly, and providing timely guidance under trying circumstances. The facts and data that this Report presents are a helpful antidote to the sweeping claims and baseless allegations that are too frequently introduced into political discourse around these issues.