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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
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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.

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“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.

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