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E.D. Policy Shift Will Sharply Limit Rights Coverage

By Alina Tugend — June 20, 2019 5 min read


In an action taken on his last day in office, the Education Department’s former civil-rights chief moved to make operational a new policy sharply limiting the application of federal civil-rights laws to schools.

Previously, the department’s office for civil rights had been applying civil-rights laws institutionwide for schools that received either Chapter 2 or impact-aid funding from the federal government. Most schools across the country receive Chapter 2 aid.

But in a Dec. 30 internal memorandum obtained by Education Week, Harry M. Singleton, then director of O.C.R., instructed regional enforcement officials to reverse the institutionwide policy on Chapter 2 and to apply civil-rights laws only to those programs within a school directly funded by Chapter 2 monies.

“Elementary and secondary education is not, for purposes of analyzing jurisdiction under Chapter 2, a single function,” the memo states.

The new directive stems from an October decision by an Education Department legal panel that the department could not require Pickens County, S.C., schools to drop single-sex gym classes, because the district’s Chapter 2 funds are not specifically used for physical education. (See Education Week, Nov. 27, 1985.)

The review board, in making its decision on Pickens County, relied on the U.S. Supreme Court’s 1984 ruling in Grove City v. Bell. That decision narrowed the reach of Title IX of the Education Amendments of 1972—which prohibits sex discrimination in educational institutions—and other similarly worded civil-rights laws to only those “programs or activities” of an educational institution that directly receive federal funding.

Currently, the review board is considering another civil-rights case—this one involving impact aid. If its judgment follows that in the Pickens case, the only other form of federal funding for schools that now triggers institutionwide civil-rights coverage would be similarly limited.

A spokesman for Secretary of Education William J. Bennett said last week the new policy has the Secretary’s approval, but Mr. Bennett had not formally reviewed it.

Chapter 2

The Chapter 2 program consolidated about 40 categorical education programs into one $500-million block-grant program. The categorical programs that now fall under the umbrella of Chapter 2 include: instructional materials and school-library resources; guidance counseling and testing; arts education; and alcohol and drug-abuse education.

Under Chapter 2, states receive a grant based upon enrollment and distribute most of that money to local districts. Districts must specify to states how they use the funds.

Until the Pickens County ruling, the Education Department operated on the presumption that because the range of programs for which Chapter 2 funds may be used “reaches throughout the school district’s programs, . . . all of a [local-education agency’s] programs and activities are subject to O.C.R.'S jurisdiction,” according to a memo distributed by Mr. Singleton to the regional offices in July 1984, following the Grove City decision.

The Dec. 30 Singleton memorandum on Chapter 2 was also distributed to the 10 regional O.C.R. offices. Mr. Singleton resigned Dec. 31.

The memo states that the Pickens County ruling nullifies the earlier directive. Rather than assuming that any school that receives Chapter 2 money falls under O.C.R’s jurisdiction, the regional office investigating a case must view Chapter 2 as “a collection of separate and distinct statutory programs,” the memo says.

It quotes the quasi-judicial Civil Rights Reviewing Authority—a seven-member board of nongovernment lawyers appointed by the secretary of education and charged with ruling on appeals made by school districts or O.C.R. on decisions by administrative-law judges. That panel’s ruling had said that Chapter 2 funds are earmarked because districts list specific programs in their applications for Chapter 2 assistance and must use the federal funds they receive for those programs.

The ruling means that regional O.C.R. offices now have to work their way through a maze of programs and activities to determine which are and which are not Chapter 2-funded.

The memo warns that regional offices must not simply look at how money is distributed organizationally, but also functionally. The regional office’s investigation “must look beyond the names of the organizational parts to the actual operation of the parts ... [to] ascertain what the component does, not just what it is called,” the memo says.

For example, it states, if a drug-abuse curriculum funded by Chapter 2 is taught in driver-education classes, O.C.R. has jurisdiction over the driver-education program.

However, if drug-abuse material is not made part of the driver-education curriculum, but is taught by the driver-education teacher in the room used for driver education during other periods, the driver-education program cannot be said to be subject to civil-rights jurisdiction, the memo states.

Because most sports and physical-education activities do not receive Chapter 2 funds, O.C.R. would probably not have jurisdiction over such activities, experts agreed.

The memo gives O.C.R. “a little more direction,” said Richard Slippen, executive director of the reviewing authority. “A lot of cases weren’t pursued because [the regions] weren’t sure what standard to apply.”

However Phyllis McClure, director of the NAACP Legal Defense and Educational fund Inc., said that the new guidelines impose “an enormous burden” on O.C.R. as well as on recipients of federal funds.

“Elementary and secondary schools are far more uniform and coherent than postsecondary institutions,” she said. “It renders the whole system ludicrous to say that a math class is covered because it received some money for metric education, then when you go to social studies, there is no federal money, so it is not covered. It trivializes civil-rights enforcement.”

“This will have a devastating impact on enforcement of all civil-rights laws as they apply to elementary and secondary schools,” added Marcia Greenberger, managing lawyer for the National Women’s Law Center. “We’re now seeing the implications of Grove City being taken to their furthest extreme.”

A Lauderdale, Ala., impact-aid case now pending before the reviewing authority questions whether impact aid is a form of federal funding or simply “reimbursement for loss of tax revenues,” Mr. Slippen said.

Impact aid is granted to about 2,900 school districts that enroll a certain percentage of students with parents who work in federal jobs, live on federal property, or both.

Mr. Slippen said the reviewing authority is expected to issue a decision on the case soon.

A version of this article appeared in the February 26, 1986 edition of Education Week


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