The Department of Education vs. Civil Rights

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It’s been a few weeks since we checked in with our good friend Betsy DeVos over at the Department of Education. Last time we visited, she was busy erasing guidelines for administration of the Individuals with Disabilities Education Act (IDEA). Before that, she was doing away with Title IX guidelines informing the way colleges address campus sexual assault.

So of course, it’s only natural to wonder what perfectly reasonable, necessary, and humane education policy Secretary DeVos is secretly unraveling today.

Well, it turns out it’s a doozy.

In mid-November, while we were hastily wrapping up our final pre-Thanksgiving projects, the Department of Education was issuing revised guidelines to its Office of Civil Rights (OCR), dramatically shrinking its authority to investigate claims of discrimination against public schools.

The most consequential revision to these guidelines—presently in draft form—is the elimination of a key word from the entirety of the text: “systematic.” Every mention of the word was conspicuously removed. This amounts to an explicit rollback in the potential scope of investigations into student claims of discrimination.

And of course, since equality in education is an ultra-classified, DC-confidential, level-ten-clearance, shadow-government, you-can’t-handle-the-truth sort of matter, somebody had to leak the new guidelines to the public in order for us to know about them.

For some reason, the Department didn’t celebrate this accomplishment with a big banner and a press release. We’re guessing it’s because, at best, these changes suggest DeVos doesn’t actually believe that systematic discrimination is a real thing that actually happens. At worst, it suggests she knows it happens but she’s kind of cool with it… but for budgetary reasons, so that makes it okay.

Even more troubling than either of these likelihoods is the true meaning buried just beneath the surface of the new guidelines: the probability that the Department’s OCR is scheduled for depopulation, if not total extinction.

As part of her crusade to dismantle every structure bearing the Obama brand, DeVos began gutting the Office of Civil Rights from the day of her arrival. She also promised in disturbingly frank terms her determination to blunt its ability to perform its key function, which is to enforce laws that “prohibit discrimination … on the basis of race, color, national origin, sex, disability, or age.”

There is no way to measure the impact that the disempowering of the OCR will have on students today or in the future. But it may rank among the most destructive and far-reaching acts of a tenure defined by demolition.

System of a Down

Inequality is systematic. That is a fact. We can argue about a lot of things but that isn’t one of them.

Systematic inequality is a reality perpetuated by institutions, economic structures, and power dynamics. For most of America’s history, this inequality has cut across lines of race, religion, nationality, gender, and sexual orientation. This inequality is sustained by a hierarchy of privilege that permeates entire systems, like employment, housing, and the electoral process. Sometimes this permeation is intentional and insidious. Sometimes, this permeation is an unconscious resistance to cultural change bred from habit rather than hatred.

Whatever its root causes, it is an inherently destructive force that stratifies opportunity, produces sharp, sometimes violent cultural divisions, and which demands a constant push toward reconciliation.

Perhaps nowhere is the power of systematic discrimination more apparent or harmful than in public education. From the first utterance of the phrase “separate but equal,” America’s schools have grappled—with varying degrees of failure and success—to understand and resolve the systematic ways in which prejudice and policy combine to preserve inequality.

We don’t have to agree on how to fix this inequality, but we must all begin from a single point of agreement: inequality is systematic.

… All of us, that is, except for Betsy DeVos.

By removing the term “systematic” from its guidelines, the Department will henceforth handle discrimination complaints individually, removed from consideration of their context. This undoes a nonbinding Obama-era guideline that advised the OCR to broaden its investigation of discrimination charges into wider inquiries concerning systematic abuses of civil rights.

The objective of the Obama guidelines was to produce investigations that illuminated and served to dismantle systematic obstacles to equality. The objective of the DeVos revisions is to limit the scope of such investigations, ultimately giving the schools themselves decisive authority over how investigations are pursued. The new guidelines would also eliminate the appeals process for students who feel an improper decision has been reached.

If there are systematic incidences of discrimination or inequality in our schools, DeVos would rather not know about them. While systematic discrimination may no longer take the form of slavery or Jim Crow laws, the DeVos rollback helps intensify the impact of “soft-racism”; the myriad destructive and invisible forms of inequality that permeate American life in the post-civil rights era. By dismantling the regulatory thrust for broader inquiries into systematic discrimination, DeVos magnifies the invisibility of this discrimination. This makes it a lot easier to argue that it doesn’t exist, in spite of the pretty clear evidence that the way American children experience educational opportunity is deeply linked to racial identity.

Dismantling the OCR

The DeVos administration has been explicitly and philosophically hostile toward federal intervention of any kind, ever. When asked during her confirmation hearing if there were any civil rights issues where she felt it appropriate for the federal government to intervene, she said, “I can’t think of any now.”

One wonders if this might have been her philosophical disposition when the federal government intervened to forcibly desegregate public schools in the 1960s. Based on her treatment of the OCR and its work, this is a fair question.

Immediately upon arriving at the Department of Education, DeVos put the OCR on blast. She indicated that she would make it her business to “return” the OCR “to its role as a neutral, impartial, investigative agency.”

DeVos explicitly takes the position that the OCR “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 and of ignoring public input prior to issuing new rules.”

Speaking bluntly, this is an absolutely absurd premise: that the Office of Civil Rights merely expands its investigations into systematic discrimination as a way of pursuing some vague agenda aimed at humiliating public schools. The idea that the OCR needs to achieve “neutrality” operates from the assumption that we’ve reached a point of perfect status quo where civil rights are concerned, that any efforts aimed at moving the needle further toward systematic equality are somehow inherently biased.

Indeed, they are biased to serve the interests of marginalized students and families, even where those interests might result in punitive or embarrassing consequences for schools. Parse the language used by DeVos and what you find is a single overarching premise: we have solved the problem of civil rights to the extent that we should.

This view has already been borne out in the way her office has “handled” civil rights cases. Under the much-maligned leadership of Candace Jackson, the OCR closed more than 1,500 civil rights complaints in just the first two months of DeVos’s tenure. Nine hundred of them were dismissed outright without any proceedings.

Civil rights advocates have expressed alarm over the rapid pace with which cases have been closed and dismissed, noting that even in advance of the new guidelines, the Department has made a concerted effort to reduce the time, energy, and empathy that enter into civil rights complaints.

Avoiding the Bigger Picture

This rollback (and the way it leaked to the press) is a pretty clear indication that DeVos doesn’t want us to look at the big picture. Because if we stand back, we’ll see that this is only the beginning of the end for the Department’s willingness or ability to protect student civil rights. The proposed rollbacks were distributed to staff in draft form and will not become final until early 2018. But, they send a signal that is consistent with DeVos’s actions so far, as well as with Donald Trump’s budgetary proposals.

Trump has been outspoken in his ambivalence toward the Department of Education, and he doubled down on his hostility by calling for $9 billion, or 13.5 percent, in budget cuts in the coming fiscal year. Part of paying for those cuts would be the elimination of forty out of the OCR’s 570 employees. Considering that 2016 saw the submission of no fewer than 16,700 complaints, this is already a shockingly barebones staff. Staffing cuts would only further blunt the diminishing power of the OCR. This fact is something more than incidental.

Seth Galanter, former principal deputy assistant secretary for human rights in Obama’s Education Department observed that the “OCR is underfunded and understaffed and in order to get through all the complaints in some kind of timely manner, staff is being forced to give them superficial treatment.”

If ratified, the proposed budget cuts would only intensify the Office’s labor challenges. Practically speaking, the procedural decision to limit the depth or scope of investigations is aimed at optimizing the office’s increasingly limited manpower. Of course, that proposes a fairly circular logic. In essence, the budget cuts themselves are packaged in a way that is inherently discriminatory.

The Atlantic points out that while it may take an unlikely legislative act to actually dismantle the OCR, it can be scaled back to borderline irrelevance through funding cuts. The Atlantic observes that “A law without enforcement amounts to little more than theater. Civil rights laws cannot be easily reversed, but they can go unenforced.”

Liz King, senior policy analyst and director of education policy at The Leadership Conference On Civil and Human Rights, recently underscored the very real threat embedded in this gesture. King explained that “People are actually worried that historic civil-rights laws may not be enforced.”

The Department of Civil Rights

The DeVos-led Department has already undertaken a series of deregulatory acts that invariably impact marginalized groups, be they transgendered students, disabled children, or victims of sexual assault.

You can think of the Department’s ongoing erosion of the OCR as something of an umbrella policy doctrine. While DeVos has couched each of her maneuvers in the philosophy of deregulation, it shouldn’t go unnoticed that each one impacts protections for marginalized groups.

Nothing yet from this Department seems aimed at enhancing the freedom of teachers to teach. Nothing yet seems to promote the ability of schools or districts to serve their demographics based on uniquely tailored curriculum. Nothing yet seems to free states from the onerous federal testing regime or the oft-debated Common Core standards.

This is not the kind of deregulation that the Department seems committed to pursuing. Instead, it is a kind of deregulation that enhances the ability and freedom of states, districts, and schools to discriminate, to marginalize and to echo the perception that systematic inequality doesn’t exist. That each act of deregulation by DeVos is part of a pattern of blunting or erasing protections for marginalized groups is something one should bear in mind before reflexively toeing the party line about how less regulation is inherently better.

In this case, it is perversely counterintuitive to the very reasons the Department of Education exists.

In the shadow of the DeVos confirmation last winter, 600 concerned education scholars sent a letter of protest to the Senate, based both on her alarming lack of qualifications and on her questionable views regarding civil rights. In their letter, the group invoked the Elementary and Secondary Education Act of 1965, which gave the federal government its definitive role in overseeing America’s schools. The group of scholars referred to the 1965 Act as, “at its heart a civil rights law.”

Indeed, it was.

Moreover, it could be argued that in its truest essence, the Department of Education is a civil rights agency, charged with the responsibility of protecting our rights to access and education regardless of race, religion, nationality gender, or sexual orientation. To a certain view, the Department’s very reason for existing is to ensure that these rights are preserved and expanded.

If you share this view of the Department, it’s easy to see why Betsy DeVos and Donald Trump wish to destroy it.

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