Local advocates and civil rights leaders are preparing to be more watchful in response to the decision under the Trump administration to scale back the U.S. Department of Education's investigations of civil rights violations.
The department announced in early June that it is changing its approach to dealing with discrimination complaints.
Through an internal memo, Candice Jackson, acting head of the department's Office for Civil Rights, stated that investigations into systemic discrimination will no longer be required and cases will be treated on an individual basis. Civil rights advocates, including those in Philadelphia, say the new protocol could spell disaster for the nation’s most vulnerable students.
“If they’re not going to look at patterns the way you would normally investigate discrimination in institutions, then we’re in trouble,” said Harold Jordan, senior policy advocate at ACLU of Pennsylvania.
Jordan and others said that as a result of the change in policy, local advocates will need to step up their vigilance.
“We advocates have to be raising both the instances of discrimination against individuals and also instances of the systemic deficiencies and discrimination,” said Deborah Gordon Klehr of the Education Law Center.
According to the memo released by Jackson, the department “will no longer follow the existing investigative rule of obtaining three years of past complaint data/files” when looking into an individual complaint. Whether to take a “systemic or class-action approach” is up to the investigators and can be determined upon conversations with the complainant rather than on data collection.
“These instructions in particular are designed to empower our investigative staff to clear case backlogs and resolve complaints within a reasonable timeframe,” Jackson wrote in the memo.
The decision to focus on civil rights complaints on an individual basis is in stark contrast to the Obama-era investigations that resulted in far-reaching case resolutions. For example, a complaint of unfair treatment in school discipline found that black students are suspended at a rate almost four times higher than white students, bringing awareness to the issue and leading some school districts to reassess their policies.
Although the Obama administration took in and resolved a record number of complaints, it used the Office for Civil Rights data to uncover systemic failures in some school districts and higher learning institutions and to drive overall reforms. From 2009 to 2016, it took in 76,000 complaints and resolved 66,000.
In addition to the reform of school discipline, the office's investigations have led to federal guidelines for transgender students and practices and policies for colleges and universities to respond to sexual assault.
For instance, in 2016, the Office for Civil Rights resolved a complaint in which a “perceived Arab-American student “ who wore a hijab was subjected to repeated acts of harassment, both verbal and physical, which included being called a “terrorist” by other students. The student eventually left the district.
Her school had responded to each individual incident and said she had access to a guidance counselor and peer mentor. However, the administration didn’t do anything about the overall climate of the school. Also, the school didn’t extend counseling to the student, despite being aware of how she was affected by the incidents.
To resolve the issue, the Civil Rights Office and the district entered a resolution that required the district to redefine harassment in its policies, release a statement reinforcing its commitment to combating harassment, and provide training about harassment to teachers, administrators, and students. The district even invited the student to return.
But not every case yields such substantial results.
“This is one out of tens of thousands. Investigations of this magnitude can be disruptive to schools,” said Francisco Negron, chief legal officer for the National School Boards Association, “and turning every single complaint or claim into an assumption that it is a systemic issue is not the better process.”
With the new approach, the office neither confirms nor denies a commitment to end systemic discrimination, but leaves it to their investigative teams to decide. Each case will also no longer require oversight from Department of Education headquarters in Washington, leaving regional civil rights offices with more autonomy.
In addition to scaling back investigations, the department proposed downsizing about 40 positions from an already reduced staff. With fewer positions, the office said, it will cut back on proactive investigations.
“Our fear is not just the lack of enforcement, but strange interpretations of the law and doing things that are harmful,” said Jordan of the ACLU.
The department contends that efficiency is its goal, but education advocates are skeptical. One of the first things the federal Department of Education did under the Trump presidency was to revoke Obama-era guidelines protecting transgender students, leaving it to states to handle.
“We all knew that the attitude of the [current] administration about civil rights issues, starting with Jeff Sessions and also with [Education Secretary Betsy] DeVos, was deficient,” said Jordan. (Editor’s note: Jordan is co-chair of the Notebook’s board.)
In March, Trump signed House Joint Resolution 57, which loosened some federal protections and guidelines from the Every Student Succeeds Act designed to make states accountable for the progress of all student subgroups, including blacks, Latinos, English learners, and students with disabilities.
“Parents, teachers, communities, and state leaders know the needs of their students better than anyone in Washington by far,” Trump said during the signing. “So we're removing these additional layers of bureaucracy to encourage more freedom and innovation in our schools.”
From slavery to school segregation to today’s transgender bathroom issues, state policy hasn’t been the most reliable when it comes to protecting the country’s most vulnerable people. Though most of education policy is decided at the state and local level, protecting marginalized students typically has been enforced by the federal government.
Other federal agencies, including the Department of Justice, Department of Labor, and Environmental Protection Agency, have implemented similar changes in policy. Under Sessions, the Justice Department is discouraging court-enforced agreements and consent decrees that grow out of discrimination complaints and have been used to enforce issues such as school desegregation and access for the disabled.
It is too early to identify the effects of the new civil rights directives, and vulnerable students are still protected by provisions in ESSA and the Individuals with Disabilities Education Act. As regional offices now have more autonomy, enforcement may vary from state to state.
“We will continue our work of challenging systemic discrimination, through the Office of Civil Rights, also through the Department of Justice, and through our court system,” said Klehr. “And I don’t think districts are off the hook from following civil rights laws.”