The Department of Education’s Office for Civil Rights's Volatile Power

Here is a question nobody asked Betsy DeVos at her confirmation hearing to become the eleventh secretary of education: Is the U.S. Department of Education a civil-rights agency?  

The last secretary, John King, thinks so. Over 600 education scholars who protested the nomination of DeVos think so, too. In a letter to the Senate, they recalled that the Elementary and Secondary Education Act of 1965, which created the federal role in American schools, is “at its heart a civil-rights law.”

While much of the controversy over the new secretary has focused on school choice and the privatization of public education, the reality is that DeVos will have little power to enact major changes on those fronts because control lies with the state. When it comes to civil rights, however, DeVos and the Department of Education’s Office for Civil Rights (OCR) still possess immense power and responsibility. During her hearing, DeVos was evasive about how she would wield both, promising only to review OCR’s policies should she be confirmed. In a recent interview, she acknowledged that “anti-discrimination issues” require “a federal role,” but, she went on, “I also think there is an opportunity to streamline and simplify a lot of the engagement and involvement the department has had around some of these issues.”

In another interview, DeVos talked about “when we had segregated schools and when we had a time when, you know, girls weren't allowed to have the same kind of sports teams—I mean, there have been important inflection points for the federal government to get involved.” There is strong evidence that school segregation is worse now than it has been for more than 30 years. The Obama administration tackled desegregation; campus sexual violence; harassment against transgender students; and disparities in discipline that made African American students and students with disabilities much more likely to be restrained, secluded, arrested, suspended, or expelled. There was a sense of urgency in the OCR during the Obama years. DeVos sees things differently. Asked if there any remaining issues where the federal government should intervene, DeVos said “I can't think of any now.”

Given this milquetoast response, it was surprising to learn that DeVos raised an objection to Attorney General Jeff Sessions and President Trump’s decision to rescind the Department of Education’s protections of transgender students’ rights. DeVos’s push-back was overridden, and though she could have refused to go along with the administration, in the end, she capitulated, and the acting assistant secretary of civil rights in the Department of Education signed off on the the new guidance. Speaking to an audience at the Conservative Political Action Conference a day later, she called the Title IX guidance “a very huge example of the Obama administration’s overreach.” None of this was unexpected—at least, not to anyone familiar with the history of the OCR.

Michael Petrilli, the president of the Thomas B. Fordham Institute, a conservative education-policy research center, suggested that the OCR under Trump would be “more humble in its goals.” He said it would likely return to the “traditional role of responding to complaints,” as previous Republican administrations have, rather than using the power of the office “more proactively to launch complaints.” President Obama and his two secretaries of education, King and Arne Duncan, certainly put much more emphasis on students’ civil rights than their predecessors did, likely because school seems to play such a large role in their visions of both citizenship and progress. Education appears to play a smaller role in Trump’s worldview, however. During his campaign and his inauguration speech, education served as just another example of American decline (“an education system flush with cash, but which leaves our young and beautiful students deprived of all knowledge”). What follows from such a view, or from DeVos’s remark that traditional public schools are a “dead-end,” is not nearly so clear.

Because the OCR has long been subject to pendulum swings between Republican and Democratic administrations, history provides the best guide to what is likely to happen to the office in the next four years.

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The OCR bears the primary responsibility to enforce laws that “prohibit discrimination … on the basis of race, color, national origin, sex, disability, or age.” Although the office has always worked with institutions to resolve complaints filed against them, its ultimate enforcement tools are to withhold federal funds or to refer a complaint to the Department of Justice for prosecution. In an interview, Catherine Lhamon, the second assistant secretary of Civil Rights for the Department of Education under Obama, said, “Happily, we almost never need to initiate [either] process.” Lhamon was appointed to a six-year term as chair of the U.S. Civil Rights Commission in the last weeks of the Obama presidency. People who work in schools, she pointed out, are there because they want to help students, so they typically work with the OCR to satisfy the law.

Republican critics of the OCR do not see things in such a warm light. They have accused the office of overreach, overregulation, and intimidation during President Obama’s administration and have promised change. Representative Virginia Foxx, a Republican from North Carolina and the new chair of the House Committee on Education and the Workforce, wants “to see the [entire] department scaled back.” At a recent post-election event, David Cleary, the chief of staff for Senator Lamar Alexander—a former secretary of education himself and the current chairman of the Senate Health, Education, Labor, and Pensions Committee—predicted a weaker role for the office: “Certainly we think that the Office [for] Civil Rights has overreached ... and, there will be a very natural shrinking of the expansive interpretations of Title IX and civil-rights laws.”

What some see as a “natural” correction to an office that has come under a great deal of criticism (and not just from conservatives) other see as a profound threat. When the Department of Education hosted an event this past December intended to mark all that the Office for Civil Rights had accomplished during the Obama administration, it felt equal parts funeral and rally. Liz King, a senior policy analyst and the director of education policy at The Leadership Conference on Civil and Human Rights, told me after the event, “People are actually worried that historic civil-rights laws may not be enforced.”

The OCR is unlikely to be abolished in the next four years. That would require legislative cooperation across the aisle. It will, however, almost certainly be diminished in scale and ambition, which some might argue is tantamount to its elimination. Curt Decker, the executive director of the National Disability Rights Network, said “There has to be a very robust enforcement system to make sure any federal legislation has the impact it is intended to have.” A law without enforcement amounts to little more than theater. Civil-rights laws cannot be easily reversed, but they can go unenforced.

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It is a tactic with precedent. The first incarnation of the Office for Civil Rights was part of the now defunct Department of Health, Education, and Welfare (HEW). Working with the Department of Justice and charged with the desegregation of schools in the South, the office carried out a transformation whose pace is hard to imagine today. In 1964, 98 percent of African American children in the South attended all-black schools. By 1972, fewer than 9 percent did.  

For some, that pace was too fast. In May 1967, the House of Representatives—and Southerners in particular—accused HEW of having “gone beyond the law” in its enforcement of desegregation, thus establishing a rebuke made repeatedly by Republicans over the years. Richard Nixon, who deliberately put desegregation on a slower schedule, delivered new guidance for desegregation of southern schools.

The director of the OCR at the time was Leon Panetta, in the first of many federal positions he would hold, including secretary of defense and head of the CIA. It could well have been his last, after he publicly defied Nixon by promising a clarification of the department’s new guidance. Panetta was much more invested in executing the duties of his office than his superiors were. It was under him, for instance, that the office first used the authority granted under Title VI of the Civil Rights Act (which prohibits race-based discrimination) to cut off federal funds to a northern school district. In 1970, just 11 months into the job, Secretary of Education Robert Finch told 31-year old Panetta he needed to resign. As Panetta tells the story, he grabbed “a used yellow pad and began scribbling the beginning of a resignation letter.” He stopped to ask, “‘Dear Mr. Secretary’—or should it read ‘Dear Mr. Finch’...or ‘Dear Bob’...or ‘Dear Chicken—’?”

For much of the 1970s and 1980s, the OCR had to be pressured to do its job. The NAACP Legal Defense Fund filed a suit against the Department of Health, Education, and Welfare in 1970 to compel it to enforce Title VI. A similar suit was filed in 1974 with respect to Title IX, which prohibits sex-based discrimination. In 1977, a federal court finally ordered the OCR to close complaints with greater speed.

That same year, the newly elected President Jimmy Carter appointed David Tatel as the director of the OCR. Tatel, who went on to become a judge on the United States Court of Appeals for the District of Columbia Circuit, placed heavy emphasis on desegregation in schools and colleges. He revitalized the agency as it cleared a backlog of cases inherited from the Nixon and Ford administrations. Tatel was replaced in 1979 by the civil-rights lawyer Roma Stewart, who was the first African American to be appointed permanent director of the office. Her tenure was not to be long, though, because Carter was not reelected.

Carter’s main accomplishment with respect to education and the Office for Civil Rights was the creation of the Department of Education in 1979. Shirley Mount Hufstedler served as the department’s first secretary. One of the justifications for the department was the need to ensure equal access for all Americans to educational opportunities of a high quality. The department was given its own Office for Civil Rights, headed by an assistant secretary, clearly indicating the prominence of the position, the office, and its mission.

The shine wore off quickly, however, with the election of Ronald Reagan, who ran on a promise to eliminate the Department of Education because he believed it represented a federal intrusion into state and local matters. Reagan appointed Terrel H. Bell as secretary of education, with the hope that he would shutter the department. In less than one year, Bell “reduced the number of [department] employees to less than 4,300 from 5,666, in part by attrition and in part by eliminating more than 250 jobs.” This attrition has continued in the Office for Civil Rights across Republican and Democratic administrations: from 1981 to 2016, the full-time staff shrank from 1,099 to 563, even as civil-rights complaints grew from 2,887 to 16,720.

Bell is remembered best today as the architect of the 1983 report A Nation at Risk, which ignited the modern education-reform movement. It declared the federal government’s responsibility to protect “constitutional and civil rights for students and school personnel.” But Bell’s record and remarks on civil rights hardly lived up to that declaration.

In 1982, he told a reporter, “We’ve tried to eliminate a lot of hassling of schools and colleges.” An official at Boston University confirmed that they did not “have people from the Office [for] Civil Rights hanging around as much” because “their staffs have been cut, and they can't do it. They are also much more willing to accept your answers.” Bell did not get to kill the department off, thanks to Congressional opposition, but he and Reagan did restrain the power of the Office for Civil Rights by cutting back its funding, reducing investigations and reviews, and rescinding guidance. These are the strategies DeVos might well follow.

Panetta is not the only director of the OCR who went onto bigger things. The assistant secretary for civil rights under Bell was Clarence Thomas. He did not approach the job with the zeal that Panetta did. In a 1987 speech at the Heritage Foundation, a conservative think tank, he said that he was insulted to get the offer, because his background was in tax and corporate law. The same would be true of his two successors during the Reagan administration. Thomas’s stint at the OCR lasted only a year, and he accomplished little; it is notable today largely because it was there that he worked with Anita Hill.

The Reagan administration was arguably a low-water mark for the OCR. Education Secretary Bell admitted he was opposed to the very laws he was obliged to enforce; between 1980 and 1985, OCR failed to spend $20 million appropriated to it by Congress; and in 1984, it undermined its own authority by permitting districts to merely submit sampled—rather than comprehensive—data. This allowed the districts to hide their weakest schools and eschew federal improvement efforts. Then, in 1988, a lawsuit that would have forced the OCR to enforce the law in a timely manner was thrown out.

When George H. W. Bush took office, it initially looked as if he would continue his predecessor’s neglect of the OCR. The assistant secretary for civil rights position was left empty for over a year, but when Michael L. Williams was confirmed, he set a new tone by meeting with civil-rights groups. He declared that he would use compliance reviews to enforce the law, review policies put in place by the previous administration, make certain the office would be more transparent, and request more funding for the OCR. He had “determined upon [his] arrival that insufficient resources had been devoted to the performance of critical legal, policy, and enforcement activities.”

Williams soon lost the goodwill he earned. At the end of 1990, he declared that scholarships based on race were illegal. He did so without approval from the Bush administration and ignited furor among college administrators and civil-rights groups. Williams’s credibility was lost, and he accomplished little during the rest of his tenure. When Richard Riley, Bill Clinton’s secretary of education, took over the department, he declared that race-exclusive scholarships were legal as long as they were intended to increase diversity or redress past discrimination.

Riley took over an office that had been largely written off by much of the civil-rights community. When Norma V. Cantu, who had been a lawyer for the Mexican American Legal Defense and Educational Fund, became the assistant secretary for civil rights in 1993, she told a reporter, “Staff have told me some stories about how in previous administrations, civil rights had not been dealt with in a serious manner.” She accused her predecessor of leaving the extant cases in a “state of disarray.”

A self-professed and proud “product of affirmative action,” Cantu pushed the office to be more proactive. She was accused, at the time of her appointment, by one conservative opponent of “having a zeal for social engineering.” Under her direction, the OCR undertook more investigations and broadened its scope. Instead of investigating only the schools that were the directs targets of a complaint, the office investigated the whole district and the whole state. Sounding like the critics of the Obama administration, The Weekly Standardcomplained at the time, “If Congress doesn't check Norma Cantu’s runaway leftism, it won't really be fair to complain that she holds herself above the law. Congress will have decided: Ms. Cantu is the law.”

The Clinton administration did not, however, escape criticism from the left. In 1995, the Citizens’ Commission on Civil Rights, which had released scathing reports on previous administrations, called out the Department of Education for failing to advance an agenda of school-desegregation and gender equality. Some critics accused the administration of lacking vision and taking a case-by-case approach, rather than implementing broader guidance and enforcement, which is precisely what the Obama administration would go on to do. In 1997, the OCR published its first guidance on sexual harassment, clarifying that complaints fell under Title IX provisions. The guidance was sparked, in part, by the uproar over the suspension of a North Carolina first-grade boy for kissing a girl on the cheek and clarified that it did not constitute sexual harassment. The guidance spoke to the level of confusion that surrounded civil-rights law for many school officials. It also started an expansion of Title IX considerations beyond equity in NCAA athletics, the primary source of controversy over the provisions until the Obama administration issued its 2011 “Dear Colleague” letter on sexual violence and harassment. In January 2001, on the cusp of the Bush presidency, the office issued additional guidance on sexual harassment, largely affirming the 1997 guidance.

The Clinton administration anticipated, albeit weakly, the Obama administration in one other area: discipline. In 2000, the OCR released a report revealing that black students were suspended and expelled at disproportionate rates, likely due to the zero-tolerance policies, sanctioned by Clinton, that many schools adopted in reaction to gun violence in schools. The Gun Free Schools Act of 1994 gave schools the authority to expel students for a year and directed them to refer students to the criminal-justice system. What has since increasingly happened, is that these policies have been applied to nonviolent offenders and, disproportionately, to African American students and student with disabilities, creating what many say is a school-to-prison pipeline. During the Obama administration, the OCR’s Civil Rights Data Collection put a spotlight on this issue, revealing, for instance, that while black children represent 18 percent of preschool enrollment, they compose 48 percent of preschool children receiving more than one out-of-school suspension. (yes, preschoolers.)

No president since Lyndon Johnson had as transformational an effect on education as George W. Bush. Sixteen years after the passage of No Child Left Behind and all the controversy that ensued over its many problems, it is easy to forget that the bipartisan law was a significant piece of civil-rights legislation. It made states accountable for poor and minority students, special-education students, and English-language learners. Schools now had to track the performance of these students and could face sanctions if they did not achieve proficiency targets on assessments. Districts, states, and the nation had to look at hard data revealing vast gaps in achievement and opportunity and take responsibility for them. William L. Taylor, the chairman of the Citizens’ Commission on Civil Rights, expressed his approval at the time, describing NCLB as “an important civil-rights tool.”

The OCR did not receive an equivalent amount of interest from the Bush administration—not initially. Although Bush’s first education secretary, Rod Paige, issued a “Dear Colleague” letter himself—reminding schools of their Title VI responsibility to protect Muslim and Arab students from harassment—the office was a low priority during the president’s first term. Like his father and Reagan, Bush picked an African American conservative, Gerald Reynolds, to head the OCR. Civil-rights organizations and Democrats rallied to block his nomination, and Bush ended up appointing him without Senate consent, during a congressional recess.

Reynolds had a record of speaking out against affirmative action, so it was no big surprise that the OCR offered no guidance after the 2003 Grutter v. Bollingerdecision, which ruled that affirmative action was justified by the compelling interest of encouraging diversity. In 2003, he issued a “Dear Colleague” letter clarifying that previous guidance on sexual harassment, issued during Cantu’s tenure, did not override the First Amendment rights of students.

Recess appointments expire, and Reynolds opted to resign at the end of 2003 rather than face a confirmation hearing. He was replaced by Kenneth L. Marcus, but only as an interim head of the office. Marcus was “delegated the authority of the assistant secretary of education for civil rights” without officially being granted the role. With Marcus, the administration started taking a stronger approach to enforcing civil-rights laws. During his term, he issued guidance reminding schools of the need to have a Title IX officer and clarifying that Title VI also protected students of faith from discrimination.

A year later, Bush had still not nominated a candidate to head the OCR. It was only after Margaret Spellings was confirmed as the new secretary of education at the start of 2005 that the assistant secretary for civil rights role was filled by a candidate confirmed by Congress. Stephanie Monroe, who had served as chief counsel for the Senate HELP Committee and worked with Spellings during the run-up to No Child Left Behind, was the assistant secretary from 2005 until the end of the Bush Administration. Monroe built on Marcus’s work to reinvigorate the OCR, by focusing on increasing the efficiency of the department. Under her leadership, the office issued guidance on a range of topics but took special interest in students with disabilities, motivated in part, she said in an interview, by the preponderance of cases involving disabilities. Under her, the office also got faster. Monroe said it resolved more than 80 percent of 4,000-plus complaints in under 120 days.

It was also under Monroe that the OCR initiated one of its most significant advances: making the Civil Rights Data Collection (CRDC) more accessible. In 2003, a panel organized by the National Research Council urged the OCR “to do more to mine their supply of civil-rights data, improve upon it, and make its existence known to a wider audience.” The office has been required by law since 1968 to collect data from primary and secondary schools about students and their institutions in the Elementary and Secondary School Civil Rights Compliance Report, but for much of its existence, the information it gathered was left largely untapped because it was difficult to access and its existence was not widely known. The E&S Survey, as it was then known, was compulsory and occurred every other year, typically surveying around one-third of all schools but occasionally doing so for all. In 2006, the OCR developed a transition plan to integrate the collection and reporting of civil-rights data on a website.

When Arne Duncan became Barack Obama’s secretary of education, he declared in his confirmation hearing that the department would be recommitting to civil rights: “Quality education is also the civil-rights issue of our generation. It is the only path out of poverty, the only road to a more equal, just, and fair society. In fact, I believe the fight for a quality education is about so much more than education. It is a fight for social justice.”

Under Duncan, the OCR assumed a more prominent place in the Department of Education, quite literally, as it was moved into the department’s headquarters. Like Clinton before him, Obama appointed an assistant secretary of civil rights with a strong background in both civil rights and education. Russlynn Ali had served, among other positions, as the vice president at the Education Trust (which has come under the new leadership of former Education Secretary John King) and a liaison for the president of the Children’s Defense Fund.

On March 8, 2010, at a site whose symbolic meaning could be lost on no one, Duncan gave a speech on the Edmund Pettus Bridge in Selma, Alabama. He announced that the Department of Education would be “issuing a series of guidance letters to school districts and postsecondary institutions that will address issues of fairness and equity.” And issue them it did, creating a cloud of controversy that would hang around the department and the OCR for the remainder of Duncan’s term as well as his successor’s. The office’s supporters have applauded the OCR for doing the work it is required to do: analyzing and clarifying the law so schools and colleges can better comply with it.

Much of the controversy that has surrounded the OCR for years has been driven by its Title IX guidance, which since 2011 has pushed colleges to do more to prevent sexual violence and harassment and, even more recently, clarified that Title IX protects educational access for transgender students. Criticism of this guidance has come not just from right-leaning organizations such as the Foundation for Individual Rights in Education, which Betsy DeVos has donated to in the past, but also from a group of Harvard Law School lawyers and the American Association of University Professors. Their complaints are basically the same: The guidance acts as a de facto law, which the OCR has no authority to issue, and the office’s guidance denies the accused of their right to due process.

Asked about these complaints at an OCR event in December, Assistant Secretary Lhamon, declared, “We are aggressively interested in protecting the rights of all students, all participants in student-misconduct proceedings.” She cited a recent resolution agreement with Wesley College in Delaware, which found that the school had violated the rights of an accused student. At the same event, Secretary King described the office’s work on Title IX, which included the publication of the names of schools under investigation for violation, as transformative. Title IX, he said, is “something that college presidents now own.”

Under DeVos, the guidance on sexual violence will almost certainly be modified, if not withdrawn, as will the transgender guidance law. So, too, might the guidance on discipline, seclusion, and restraint, in particular. Seclusion (removing a student from a classroom and putting her in isolation) and restraint (restricting a student’s movement, often by pinning him to the floor) have been used disproportionately against students with disabilities and African American students. President Trump’s rhetoric about “American carnage” and “bad dudes” suggests he is more likely to embrace the “zero-tolerance” policies.

The time and effort it takes to resolve many of the thousands of complaints the OCR receives each year help explain why the office pursued a more assertive (or, depending on the perspective, aggressive) policy on guidance in the past eight years. The fastest way to resolve a complaint is to prevent its ever having been made, which is why the department said it placed so much emphasis on making its guidance and data more usable, available, and visible.

Justice is slow, childhood is fleeting, and the task of the Department of Education’s Office for Civil Rights is to make those schedules match. Information and transparency are key to attaining that goal. In addition to making its resolutions part of the public record so other school leaders could learn from them and increasing its outreach to schools through technical assistance (through, for example, workshops, flyers, and community meetings), the OCR under Obama made the data it is required to collect about civil rights in primary and secondary schools more easily accessible, comprehensive, and public-facing. Now, state and local governments, schools, community organizations, journalists, and citizens could use them. The OCR has used it biennial CRDC reports to highlight disparities in such areas as discipline, college and career readiness, and absenteeism.

Repeatedly in interviews, civil-rights stakeholders expressed their support of the OCR’s decision to make the CRDC more public-facing and to use it as a tool for shining a light on civil-rights issues. Liz King of the Leadership Conference points to this change as evidence that “leadership matters. From Arne Duncan, we saw a huge premium on data transparency” and a “strong emphasis on CRDC.” They also expressed concern that this could change in the Trump administration. Monique Dixon, the deputy director of policy and senior counsel at the NAACP Legal Defense Fund, praised the Obama administration’s transformation of the CRDC into a mechanism for confirming the scale of civil-rights abuse, but she worries that the new administration could mean a “return to inactivity.”

The staff that created the reports will remain in place at the OCR, but it will be up to Secretary DeVos and her assistant secretary for civil rights whether they will carry out that task. It is easy to imagine the argument from the incoming administration: that the extent of the data collection places an unreasonable burden on schools, and so it needs to be scaled back. When I asked Gerard Robinson, an adviser to Trump's education-policy team, about this possibility, he suggested that the changes made to the CRDC were part of Secretary Duncan’s “data-driven vision,” which he attributed to his having been a superintendent. Robinson asserted that Trump “is also a data guy. Betsy DeVos is also a data person.” No data were provided to back up these claims.