President Obama has wielded civil rights enforcement powers aggressively in the education arena for the past eight years, pushing colleges to toughen policies on sexual assault and schools to eliminate racial bias in student discipline. His administration also declared that transgender students must be allowed to use bathrooms consistent with their gender identity — a question now before the Supreme Court.
President-elect Donald Trump could reverse much of that, if he chooses, after he takes office in January.
With the stroke of a pen, Trump or his senior officials could revise or rescind Obama administration statements on transgender rights and sexual assault. The Trump administration and a Republican Congress also could starve civil rights enforcement funding, slowing hundreds of open investigations and narrowing their scope.
Republican lawmakers have repeatedly criticized the U.S. Education Department’s Office for Civil Rights, accusing it of overstepping its legal authority. They say they want OCR to give more deference to colleges and local schools. With political control in Washington, they might be able to rein it in.
“Whoever is selected to lead OCR must restore its daily operations to their original construct and stop the unchecked regulatory overreach,” said Sen. James Lankford (R-Okla.). The office “should be a valuable asset to our nation rather than a dreaded regulatory bully.”
Trump said relatively little about education during the campaign and even less about the intersection of civil rights and schools. At one point he asserted that the Education Department "is massive and it can be largely eliminated." Whether that was just campaign hyperbole remains to be seen. The GOP platform was more specific, attacking "bureaucrats" in the Obama administration for interpreting a federal law barring sex discrimination, Title IX, as including protections related to "sexual orientation or other categories."
“Their agenda has nothing to do with individual rights; it has everything to do with power,” the platform stated. “They are determined to reshape our schools — and our entire society — to fit the mold of an ideology alien to America’s history and traditions.”
The Trump transition team did not respond to requests for comment.
Education Secretary John B. King Jr. has strongly defended OCR. In February, he told Congress that the office “has been actively protecting the rights of all students through comprehensive strategies,” including efforts to stop bullying, harassment and sexual assault. Last week, King told reporters that it was “crucial” for any future secretary to “have a strong commitment to the historical goal of the department in protecting students’ civil rights.”
Trump on Wednesday named billionaire conservative Betsy DeVos as his nominee for Education Secretary. DeVos is known as a staunch advocate for vouchers and charter schools, but it is not clear what tack she will take with civil rights enforcement.
The Office for Civil rights, one of the department’s largest units, had about 540 employees in 2015 at its headquarters and 12 regional offices. Its mission is to enforce laws barring discrimination on the basis of race, sex, national origin, disability and age. The staffing level has shrunk 24 percent since 2000, even as complaints have risen. In fiscal 2015, OCR fielded more than 10,000 complaints and opened more than 3,000 investigations.
College sexual assault
Some of OCR’s highest-profile investigations have scrutinized how colleges and universities respond to sexual violence.
The Obama administration in 2011 advised colleges in a guidance letter that sexual violence is a form of sexual harassment prohibited under Title IX. The letter also said that schools must respond promptly and equitably to reports of sexual violence and use a standard common in civil law, known as "preponderance of the evidence," when deciding whether a student broke rules against sexual misconduct. That is a lower standard of proof than the "clear and convincing evidence" benchmark some schools had used.
Together with student activism and growing public awareness, the letter helped fuel a surge in complaints alleging that colleges had mishandled sexual violence reports. The Obama administration in May 2014 made public the names of 55 colleges and universities under investigation in connection with sexual violence. Since then the list has nearly quadrupled, to 216. In that time, two dozen investigations affecting 21 schools have been resolved.
Cynthia Garrett, co-president of Families Advocating for Campus Equality, which supports due-process rights for accused students, said colleges too often trample those rights. Garrett said she hopes the Trump administration will set a new tone. Obama’s OCR “basically created an atmosphere of fear among colleges rather than cooperation,” Garrett said. “We think they’ve gone too far.”
Mahroh Jahangiri, executive director of Know Your IX, a group pushing to end sexual violence in schools, said she fears funding for OCR could dwindle.
“Our biggest worry is that a Trump Department of Education just simply doesn’t do enforcement work,” she said. If pending sexual violence investigations are dropped, she said, it would be “an immense setback for student activists and survivors.”
Whatever the new administration decides, many colleges are unlikely to scrap initiatives developed in response to pressure from student activists and Washington to prevent sexual assault and punish misconduct.
“Colleges and universities will not be backing off their efforts to combat sexual abuse on campus,” said Terry Hartle, a senior vice president for the American Council on Education. “It is simply unacceptable in the 21st century.”
In May, the Office for Civil Rights teamed with the Justice Department’s Civil Rights Division on a letter of administration policy. It stated that Title IX’s protections extend to transgender students, allowing them the right to use school bathrooms and locker rooms in line with their gender identity. Conservatives say that position distorts the law and violates student privacy and traditional values.
The Supreme Court last month agreed to take up the issue through a case originating in Virginia. Gavin Grimm, a transgender teenager from Gloucester, sued his school board after it barred him from using the boys' bathroom.
Joshua Block, an attorney with the American Civil Liberties Union who represents Grimm, said that Trump officials should think twice about overturning the Obama administration’s guidance on transgender rights.
“I think the guidance was very important in giving sort of a clear road map to schools about what best practices are, and I think the guidance provided a sense of certainty,” Block said. “The more certainty and clarity there is for students, the better their lives are going to be, and the more they’re going to be protected.”
Even if Trump withdraws the guidance, Block said, transgender students would be able to sue for access to bathrooms and locker rooms. But they would do so without the Education Department as an ally.
Block said he hopes Grimm’s case will move forward and settle constitutional questions about transgender rights. Other observers think that without the Obama administration’s guidance in place, the high court probably will send the case back to a lower court.
Trump has appeared to side with transgender rights, voicing skepticism in April about North Carolina’s controversial “bathroom bill,” which mandates that people use public restrooms aligned with the sex on their birth certificate. That bill led businesses, performers and organizations, including the NCAA, to boycott the state. “People go, they use the bathroom that they feel is appropriate,” Trump said at the time. “There has been so little trouble. And the problem with North Carolina has been the strife and the economic punishment that they’re taking.”
But Vice President-elect Mike Pence told a prominent social conservative leader in October that he and Trump oppose the Obama administration’s position. Pence told James Dobson, founder of Focus on the Family, that the federal government has no business telling schools how they should accommodate transgender students.
“Donald Trump and I believe that all of these issues are best resolved at the state level, by the people, the community,” Pence said.
Long before Obama took office, civil rights advocates had complained that harsh school discipline policies were sending too many students into the criminal justice system. Those students were disproportionately minorities.
Obama’s Justice and Education departments urged schools to adopt less-punitive measures and in 2014 released a joint guidance warning that schools could face legal action if their policies led to disproportionate suspension or expulsion of students of color, students with disabilities, or any other subgroup.
The federal intervention helped push many schools to seek alternative discipline strategies. Suspensions fell 20 percent from the 2011-2012 school year to 2013-2014, according to federal data, although stark racial disparities persisted. Black students were still four times as likely as white students to be suspended, and nearly twice as likely to be expelled.
Some say the administration overreached. Joshua Dunn, a political science professor at the University of Colorado at Colorado Springs, has called Obama’s approach “profoundly misguided.”
The administration's guidance encourages schools "to tolerate disruptive and dangerous behavior lest they have too many students of one race being punished," Dunn wrote last year in the journal Education Next. "Perversely, the students most harmed by these guidelines will be minority students in urban districts. Minority students who want to learn will see their education hijacked by troublemakers, and the troublemakers will learn that they can misbehave, with limited consequences."
Supporters of Obama’s initiative fear the new administration will change course, either revising the guidance or cutting OCR’s staff and funding. They also are concerned that OCR could scale back efforts to collect vital data on suspension and expulsion rates, access to advanced coursework and chronic absenteeism.
“Over the past eight years, we’ve seen an OCR in the Department of Education that has been very proactive, and we’re certainly expecting that same level of proactiveness will not be the case” under Trump, said Kaitlin Banner, an attorney for the Advancement Project, which seeks discipline policy revisions. “Based on the rhetoric of the campaign, we can guess that it will not be a priority for them to vigorously enforce civil rights in schools.”