Catherine Lhamon, the assistant secretary for civil rights in the Obama administration’s Department of Education, is now a prominent critic of the Trump administration’s stance on civil rights. And the criticism flows both ways.
U.S. Secretary of Education Betsy DeVos has said the office for civil rights in the Education Department, led by Lhamon, was overreaching in its approach to investigating and enforcing civil rights.
Under DeVos’ leadership, the Education Department has halted the previous administration’s practice of regularly expanding probes into individual civil rights complaints to look for larger, systemic violations. Early in her tumultuous tenure, DeVos joined Attorney General Jeff Sessions in rescinding Obama-era guidance on the rights of transgender students, and she recently said she plans to re-examine the previous administration’s guidance on sexual assault.
Lhamon is now the chair of the U.S. Commission on Civil Rights, an independent agency charged with advising Congress and the president. The commission voted in June to launch a two-year investigation into civil rights practices at several federal agencies under the Trump administration, including the Education Department.
In Lhamon’s time at the office for civil rights, the agency took a highly public role and investigated a record number of complaints.
This conversation has been edited for length and clarity.
Much recent public debate has centered on the Education Department’s decision to focus on individual civil rights complaints and to end a practice of exploring related data to look for larger, more systemic issues. DeVos said in a letter to U.S. Sen. Patty Murray, D-Wash., that the office for civil rights “had descended into a pattern of overreaching, of setting out to punish and embarrass institutions rather than work with them to correct civil rights violations.”
What’s your response to this criticism, and why did you consider this systemic approach important?
I think the only way to do effective civil rights enforcement, which is OCR’s congressional charge, is to use the expertise of the staff related to civil rights ... as well as the kinds of fact patterns that can come up to evaluate whether civil rights have been violated. The statutory and regulatory charge for the office for civil rights is to act whenever the office has information that civil rights may have been violated. Typically, if the office received a complaint or otherwise opens an investigation into a particular issue, the office is examining whether there was particular animus toward a single student or a lack of information about civil rights law as it applies to a class of students.
We saw it over and over again. If one student had not had, for example, a manifestation determination [a required assessment schools do before disciplining a student with disabilities to determine if that student’s misbehavior stems from their disability] ...typically that was because the school didn’t know that it should conduct such an [assessment]. It means that it had not only not done it for that student, but it had [also] not done it for the whole class of students like that student at that school. If you get a correction only for the one student who knew to complain to OCR, you are failing to satisfy Congress’ charge to protect civil rights for all students.
A conservative critic recently criticized the systemic approach. He pointed out some cases for which you ended up finding that there wasn’t something worth penalizing the school for the individual complaint but you uncovered something in systemic data, like racially disparate rates of suspensions. He argued that maybe that was inappropriate. If the individual complaint is resolved without you taking any action, then why should you take action on broader issues?
I think that is an astounding criticism in its historicity and its failure to understand the reason for having federal civil rights enforcement.
It is a good thing every time the office can identify lack of violation of civil rights, and that is worth celebrating. It is also the case that the office employs close to 600 staff who have singular expertise with respect to civil rights and who follow the updates in the law, changes in statute, changes in court interpretations, and the wide variety of fact patterns that can take place for students in school. It really is an unbelievable trove of resources for schools about how to make sure that every student is respected as a learner in school... .
It is astonishing to me to hear from people that when there are violations of the law, OCR should turn away from that because that particular student didn’t think to come to OCR and ask for relief. That is not the structure the Congress set up 60 years ago, and it is not the structure any of us would want for a child we love in school.
Another one of DeVos’ criticisms of the approach of more automatic triggering of systemic reviews is that it slows down resolution for the original, individual complainants.
I find it laughable. The [Trump administration’s] budget proposal for the office for civil rights requires such an astounding staff loss that the staff are projected to carry 42 cases per person under that budget proposal. ... If anyone were concerned about slowing down resolution—which we were in the Obama administration—the thing to do is to ask for more dollar resources for the staff to be able to speed up the work, not to ask for the staff to carry an untenable caseload.
That is, again, an absolute red herring to suggest there is real concern about speed. The reality is that I’m sick every day about knowing how long students have had to wait for justice.
The staff when I was there were working as hard as they could to secure as much justice as they could every single day. The way to achieve that is not to put blinders on the staff’s eyes and to turn away from justice issues that are evident to us. The way to achieve that is to do the work [in a] fair and comprehensive [way]. That means tracking down the facts, going where the facts lead you, and hearing from people who have a variety of perspectives about the particular issues under investigation to make sure that you are achieving a just and comprehensive result.
Some conservative policy watchers have criticized headlines that say that DeVos is rolling back education civil rights. They say she is actually returning to norms that existed before the Obama administration, which took a more aggressive approach. You had record-high investigations in part because of a more public posture from the agency.
Is this just the kind of policy shift we’d see with a transition in the White House? Would you have had these kinds of concerns about previous GOP administrations or previous administrations in general?
I had real concern, for example, about the way the Reagan administration approached civil rights enforcement. Until now, that was for me the low point in U.S. history for federal civil rights attention and enforcement. I worry that we are now at a nadir that drops below the Reagan administration.
I certainly don’t think that the posture of this administration—in what it has said and the actions it has taken to date—is consistent with the traditional ebbs and flows of administration change. The particular hostility to civil rights enforcement and a callous and astonishing lack of knowledge about the civil rights minimums—that are bipartisan and long-standing in this country—amaze me.
To be concrete about that, just two days ago, the secretary of education gave a speech in which she said that she directed the office for civil rights to return to improved [Individuals with Disabilities Education Act] enforcement, but the office for civil rights does not enforce the IDEA. So that core lack of knowledge about the jurisdictional charge for the jewel of civil rights within the Department of Education is distressing and dangerous and is unprecedented in the existence of the Department of Education. So I don’t think what we are witnessing today is just the shift in administration. I think what we are witnessing today is dangerous on a level that we have not yet seen as a country.
The Obama administration issued a lot of guidance. That included some of the big ones that get a lot of attention, like the 2014 guidance on disparate impact and school discipline, transgender students, bullying, and Title IX.
Some, including DeVos, have criticized your “Dear Colleague” letters, calling them “administrative fiats” and saying that you essentially created a new policy while bypassing the formal review process. How do you respond to that? Do you believe that there is any instance in which you should have collected more public input or in which collecting more public input might have made people more receptive to that guidance?
My first response is that the criticism is pure and utter nonsense. The United States Supreme Court has ruled unanimously in just the last few years that the issuance of guidance that is not legally binding is well within the purview of administrative agencies, and it is absolutely appropriate to share information about how those agencies do their work. For purposes of the office for civil rights, the goal of that guidance is to share information with schools about how they can satisfy student civil rights. It is a way of avoiding a “gotcha” moment through enforcement and sharing information with the school.
In addition, there is nothing new or unusual about issuing guidance without notice and comment. It is very consistent across administrations. One concrete example is the George W. Bush administration in 2005 issued clarification of Title IX’s application to intercollegiate athletics without notice and public comment... .
Whether it would have been useful for the Obama administration to have heard more viewpoints—I don’t think it would have been because we heard from lots of people, lots of criticism over all of the various issues that we were addressing. The sexual-violence guidance that we issued, the White House task force to protect students from sexual violence held 27 listening sessions in the first 90 days of that task force, and those listening sessions involved college and university presidents, administrators, general councils, Greek organizations, student-survivor advocates, conduct administrators, and the whole gamut of people involved in the issue—and they expressed a wide variety of views in very public settings.
OCR’s practice over years has been to hear from people on all sides of issues before issuing the guidance documents.
The Obama administration’s OCR put a great emphasis on sharing information online—including a list of colleges that sought Title IX exemptions and agreements between OCR and schools to resolve civil rights complaints—and you also made the civil rights data collection more open and usable so that people could more easily search it. How did this level of transparency advance your policy goals?
I think it is critically important for everyone involved to know what their rights are and to know what their obligations to other people are. Sharing that level of transparency meant that more students are more safe because people who wanted to satisfy the law had access to knowing what they needed to do; ... people who wanted to know whether they had a right to something or not had access to information so that they could advocate for themselves without having to wait for someone else to come in. We saw substantially more compliance because of more information about how to comply. ...
We saw between the 2011-12 and the 2013-14 data collections an almost 20 percent drop in rates of suspension in schools around the country. That is extraordinary progress in a very short period of time that followed real sunlight on an issue that has bedeviled schools since the very first desegregation agreements that OCR began enforcing when OCR opened as an office following the 1964 Civil Rights Act.
There is a set of persistent and ugly challenges for students in schools that has lasted too long, and to be able to see that kind of incredible transformation in such a short period cements, to me, the value of transparency and information sharing.
Do your concerns about the current administration’s approach extend to that transparency?
It is very hard to know. So far, the administration hasn’t modified the transparency as much as many worried that they might. As I mentioned in the budget proposal for OCR, I see a plan to continue the civil rights data collection in what appears to be a transparent and universal way and that I think is very comforting. I hope that plan continues. So far, this administration has continued to share information on the website about resolution agreements secured and about schools under investigation. There have been some blips in willingness to share information through [the Freedom of Information Act], and some websites have come down that I’m hoping will come back up, but it is a little early to know whether that transparency will continue or not. I certainly think that level of transparency is critical to meaningful civil rights satisfaction.
After the Trump administration rescinded the transgender-student guidance, you were at a protest outside the White House with Gavin Grimm [a transgender student who sued his Virginia school district for access to the boy’s restroom]. I know that you and clearly others in the administration felt very strongly about this issue.
Why did the Education Department and the Justice Department wait until 2016 to issue the guidance? Do you ever wish you had acted sooner?
The department before I started had begun investigating rights of transgender students in schools, and that was because so many administrators, educators, and families had asked questions about those rights. As you probably know, the office issued together with the Department of Justice the first resolution related to transgender students in 2013, before I came. Following that and several others, those investigations helped OCR to see the scope and variety of the kinds of facts that needed answers in both K-12 institutions as well as institutions of higher education.
So OCR, together with the Department of Justice, was using the time to investigate those kinds of facts and also universities and colleges and school districts and states’ view of the appropriate ways to address those facts consistent with the law. Then OCR and DOJ also went through the interagency-review process to make sure that all relevant agencies were comfortable with the particular answer. That process is long. We issued the guidance as soon as we could following what is a responsible and detailed investigation of both law and facts.
When the Trump administration rescinded the transgender guidance, one of its concerns was that you had issued it without seeking public input.
It is amazing to me. It could not be further from the truth. I and my colleagues at the Department of Education and the Department of Justice filed briefs in the Supreme Court and the [U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.] detailing the lengths that we went through to analyze and hear ... people’s views on this topic.
You had to feel that night standing there outside the White House with Gavin that tension between being careful and deliberate and also the urgency for this individual student, right? [Grimm later graduated from high school before his complaint was resolved.]
I felt that that night and I felt that every day when I was at the office for civil rights, and I feel that every day now.
The reality is that civil rights issues are issues that people feel strongly about regardless of the issue. They are issues that affect who a person is in his or her core every time. You don’t want to get it wrong. You don’t want to start down the wrong path and you want to be careful and be sure that you are comprehensive enough. That worry is present every day of doing civil rights work.