Law & Courts

Civil Rights Groups Wary on Federal Enforcement Stance Under Trump

By Mark Walsh — November 23, 2016 | Updated: November 23, 2016 8 min read
  • Save to favorites
  • Print

The prospect that the incoming Trump administration could scale back the federal role in civil rights enforcement in education has many rights advocates deeply worried after nearly eight years of high-profile attention to such issues under President Barack Obama.

The Obama administration has emphasized such concerns as addressing racial disparities in school discipline and special education; ensuring that transgender students may use the restrooms and locker rooms corresponding to their gender identity; and combating sexual violence in higher education. Those have been among the top priorities of the U.S. Department of Education’s office for civil rights.

Meanwhile, in the U.S. Department of Justice, the educational opportunities section of the civil rights division has reinvigorated desegregation enforcement at a time when many schools have become more racially isolated, and it has pressed cases on alleged religious discrimination, sex bias, and discrimination against English-language learners.

Shortly after President-elect Donald Trump’s victory, however, Gerard Robinson, a member of the Trump presidential-transition team responsible for K-12 education—speaking for himself and not on behalf of any organization—suggested to Education Week that the new administration could shift the Education Department’s office for civil rights back to its less activist stance under Presidents George W. Bush and George H.W. Bush. He did not give details. But Robinson also stressed that he expects the OCR to ensure that students’ rights are not “trampled on.”

So far, some leading civil rights organizations are not optimistic.

See Also

Complete Coverage: 2016 Elections

“The work of this [Obama] administration has been incredibly important” on civil rights issues in education, said Liz King, the director of education policy for the Leadership Conference on Civil and Human Rights, in Washington. “I think there is a lot of concern in the civil rights community” about what direction the new administration will take, she added.

Daniel J. Losen, the director of the Center for Civil Rights Remedies, part of the Civil Rights Project at the University of California, Los Angeles, said, “What’s scary to everybody who cares about the civil rights of children is that the worst of what [Trump] might do is horrific.”

“The question in my mind is, how bad will it be?” he added.

But Roger Clegg, a former Justice Department civil rights official under Presidents Ronald Reagan and George H.W. Bush, said that “on discrimination, the law will be enforced. … I’m confident that will happen here.”

Many Unknowns

He also said in areas such as racial preferences and “disparate impact,” when there is a statistical difference in outcomes based on race, the Trump administration is likely to oppose positions taken by the Obama administration.

Much is unknown about how the incoming administration will proceed on civil rights in education, added Clegg, the president and general counsel of the Center for Equal Opportunity, in Falls Church, Va.

Federal Watchdogs

Two agencies are the principal ones charged with enforcement of federal civil rights laws and issues in education.

U.S. Department of Education Office for Civil Rights

Fiscal 2016 Appropriation: $107 million
Number of Employees: 589
Responsibilities: OCR helps enforce federal laws barring discrimination in educational programs receiving federal funds. The office investigates discrimination complaints, conducts compliance reviews, monitors corrective action plans, and provides technical assistance on civil rights issues. It has 12 enforcement offices around the country.

U.S. Department of Justice Civil Rights Division Educational Opportunities Section*

Responsibilities: The arm of the department is charged with protecting students from discrimination based on race, color, national origin, sex, and religion. It is involved in some 180 active school desegregation cases. It also is charged with enforcing the rights of English-language learners and students with disabilities.

*The Justice Department does not break out its budget or employee figures for each section of its Civil Rights Division.

Sources: U.S. Department of Education; U.S. Department of Justice

“We know that Hillary Clinton would have been quite liberal in this area,” said Clegg. “We’re dealing with at least the possibility of more conservative policies in these areas, but it depends on who [Trump] nominates to run these different agencies.”

U.S. Secretary of Education John B. King Jr., speaking to reporters Nov. 17, said he believed his successor as secretary needed to “have a strong commitment to the historical role of the department in protecting students’ civil rights.” On Nov. 23, Trump named Betsy DeVos, a Michigan philanthropist and major national advocate of school choice, including tuition vouchers, as his nominee for education secretary.

One early flash point during the Trump administration could be the issue of transgender rights.

Under Obama, the OCR has taken the view that under Title IX of the Education Amendments of 1972, which prohibits discrimination “based on sex” in federally funded educational programs, schools and colleges must allow transgender students to use the restrooms or locker rooms that correspond to their gender identity.

A broad guidance document on the issue from the Education and Justice departments is being challenged in a lawsuit by 21 states, which contend that the interpretation is incorrect and that such guidance may not be imposed on the states without going through a notice-and-comment rulemaking procedure, which the May 16 “Dear Colleague” letter did not.

Meanwhile, the U.S. Supreme Court has accepted a case that arose before the “Dear Colleague” letter was issued that involves a Virginia transgender student who was denied the use of the boys’ restroom in his high school. A federal appeals court ruled for the student by giving deference to an informal interpretation of Title IX provided by an OCR official.

Some observers have suggested that the Trump administration could quickly reverse course by withdrawing such guidance. Last spring, candidate Trump gave mixed signals on the issue. He said on one occasion that he thought transgender people should be able to “use the bathroom that they feel is appropriate.” He later said it should be a matter for states to decide.

Two former U.S. solicitors general—the executive branch’s chief lawyer before the Supreme Court—were asked at a forum after the election about a new administration’s flexibility to withdraw guidance, and they were asked specifically about the transgender guidance.

Donald W. Verrilli Jr., who served as President Obama’s solicitor general from 2011 until this past spring, said the transgender guidance “was not done by notice-and-comment rulemaking. So it’s not a formal rule. It’s an informal letter interpreting existing law. So my observation about that is that it is easy for a new administration to change that.”

Theodore B. Olson, who was solicitor general under President George W. Bush, agreed at the Nov. 17 forum in Washington, sponsored by Bloomberg Next, that a new administration could change something like the transgender guidance “relatively easily.”

“When people talk about the first 100 days, or the first day, somebody’s going to have a list of things” a new administration could change, Olson said. The question is, he said, would it want to?

But he also noted that such changes in position can be tricky when they are part of a case pending before the Supreme Court.

“The Supreme Court expects you in [the solicitor general’s] office to be calling it very straight—not being capricious, not changing positions just because a new person or new president comes in,” Olson said.

If the Obama administration decides to take a position in the transgender case before the Supreme Court, Gloucester County School Board v. G.G.—a normal step, given that its interpretation of a federal law is central to the case—its friend-of-the-court brief would be due just days before Trump is inaugurated on Jan. 20.

Justice Department’s Role

Meanwhile, the president-elect’s Nov. 18 announcement of his selection of Sen. Jeff Sessions, R-Ala., to be attorney general was greeted with dismay in the civil rights community. Critics pointed to Sessions’ positions against gay marriage and for strict immigration enforcement, for example, and to accusations of racism that helped derail his 1986 nomination by President Ronald Reagan to a federal judgeship.

Eric H. Holder Jr., Obama’s first attorney general, was credited with reinvigorating the Justice Department’s civil rights division, which maintains a key role in education issues, especially in ongoing desegregation cases.

Anurima Bhargava, who headed the division’s educational opportunities section for most of Obama’s tenure, offered a measured view of the impact of a new administration.

“In my section alone, there are [career staff members] who have been through multiple transitions in administrations,” she said in an interview. “They continue to do the work through those transitions. There are always dedicated people who stay and hold down the fort.”

The educational opportunities section presses ahead on longtime desegregation cases, many of which go back years or even decades.

“Certainly, as we know, schools are more segregated today than they have been in decades,” said Bhargava, who is now a fellow at the Open Society Foundations, in New York City, and the Carr Center for Human Rights Policy, at Harvard University’s John F. Kennedy School of Government.

Keeping an ‘Open Mind’

Republican civil rights activists stressed their view that presidential administrations of their party have enforced civil rights laws in education, and they expressed hope that the Trump administration would do so.

“We should give his incoming administration an open mind and hold out the possibility that there will be improvements in civil rights enforcement,” said Kenneth L. Marcus, who was effectively the acting head of the OCR for about a year under President George W. Bush.

Marcus, now the president and general counsel of the Louis B. Brandeis Center for Human Rights Under Law, in Washington, said that when the OCR under his acting leadership dealt with schools and colleges, “my sense was that most administrators understood that they needed to respond quite promptly and seriously, regardless of the [presidential] administration.”

“In my experience, the overwhelming majority of cases OCR handles will be addressed largely the same, regardless of whether it is a liberal or a conservative administration,” Marcus said. “The differences will come in the relatively high-profile cases. But then, those are the cases that matter.”

Losen, of the Civil Rights Project at UCLA, was not prepared to cut the Trump administration any slack.

“I worry about creating this image of likely normalcy,” he said. “If you look to the Reagan and [both] Bush administrations, there was significant scaling-back” of civil rights enforcement in education, he said. “Until we see some clear indications of what [Trump] is really going to do, we’re justified in fearing the worst.”

Coverage of policy, government and politics, and systems leadership is supported in part a grant from by the Eli and Edythe Broad Foundation, at www.broadfoundation.org. Education Week retains sole editorial control over the content of this coverage.

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Student Well-Being Webinar
A Whole Child Approach to Supporting Positive Student Behavior 
To improve student behavior, it’s important to look at the root causes. Social-emotional learning may play a preventative role.

A whole child approach can proactively support positive student behaviors.

Join this webinar to learn how.
Content provided by Panorama
Recruitment & Retention Live Online Discussion A Seat at the Table: Why Retaining Education Leaders of Color Is Key for Student Success
Today, in the United States roughly 53 percent of our public school students are young people of color, while approximately 80 percent of the educators who lead their classrooms, schools, and districts are white. Racial
Jobs January 2022 Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and other jobs in K-12 education at the EdWeek Top School Jobs virtual career fair.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Supreme Court to Hear Case of Coach Who Prayed After Games in Defiance of School District
The U.S. Supreme Court will consider whether school districts may prohibit private religious expression by public school employees.
4 min read
Former Bremerton High School assistant football coach Joe Kennedy is in a conflict with the Bremerton, 
Wash., school district over his silent prayer after games.
Former Bremerton High School assistant football coach Joseph A. Kennedy stands at on the 50-yard line at Bremerton Memorial Stadium. The U.S. Supreme Court agreed to hear an appeal over his dismissal for praying after football games.
Larry Steagall/Kitsap Sun via AP
Law & Courts Supreme Court Blocks Biden Vaccine Mandate Applying to Schools in Much of the Country
The justices ruled 6-3 to stay an Occupational Health and Safety Administration rule that covered schools in 26 states and two territories.
4 min read
Members of the Supreme Court pose for a group photo last April.
The U.S. Supreme Court blocked a federal vaccine mandate for large employers, including school districts in about half the states.
Erin Schaff/The New York Times via AP
Law & Courts Students Lose Appeal on Right to Civics Education, But Win Praise From Judges Anyway
A federal appellate court panel commended Rhode Island students for the novel effort, but said Supreme Court precedent stood in the way.
3 min read
Scales of justice and Gavel on wooden table and Lawyer or Judge working with agreement in Courtroom, Justice and Law concept.
Pattanaphong Khuankaew/iStock
Law & Courts High Court Appears Skeptical of Vaccine Mandate Covering Schools in Over Half the States
The Biden administration's OSHA rule applies to private employers with 100 or more workers, as well as school districts in 26 states.
4 min read
The Supreme Court shown Friday, Jan. 7, 2022, in Washington. The Supreme Court is taking up two major Biden administration efforts to bump up the nation's vaccination rate against COVID-19 at a time of spiking coronavirus cases because of the omicron variant.
The U.S. Supreme Court is weighing two Biden administration efforts to bump up the nation's vaccination rate against COVID-19.
Evan Vucci/AP