R. Shep Melnick, Author at Education Next

Still Essential, Still Elusive: Brown v. Board of Education at 70

R. Shep Melnick — Wed, 15 May 2024 09:00:36 +0000

On the steps of the U.S. Supreme Court, Nettie Hunt explains to her daughter Nikie what the end of school segregation means following the Brown v. Board of Education decision in 1954. The 70-year legacy of the decision has given school reformers cause for both celebration and consternation.

May 17 marks the 70th anniversary of the U.S. Supreme Court’s landmark school desegregation decision in Brown v. Board of Education. There is ample reason to celebrate Brown: not only did it mark the beginning of the end of the racial caste system in the South, but also it reinvigorated the Equal Protection Clause of the Fourteenth Amendment. Its implications reach far beyond race and education, as important as those matters remain.

At the same time, it is remarkable how many of the legal and policy questions raised by Brown remain unresolved. Consider some of the issues many school systems now confront:

To what extent can school districts take students’ race into account in order to produce diverse schools and classrooms? In recent years the Supreme Court has limited the use of race-based assignments but has also allowed ample wiggle room.
To what extent can school districts change the admissions requirements of exam schools to increase the number of Black and Hispanic students if the readily predictable result (and perhaps a secondary purpose) is to reduce the number of Asian American students?
A number of public schools offer voluntary “affinity” groups or courses limited to Black students and led by Black teachers. Does this practice violate federal law?

These questions remain the subject of intense debate and litigation seven decades after Brown because the Supreme Court has never spelled out exactly why segregation violates the U.S. Constitution, what “desegregation” means, and what schools must do to comply with Brown’s mandate. Chief Justice Earl Warren’s constitutional argument in Brown was perfunctory, resting more on flawed social science evidence than on a convincing interpretation of the Fourteenth Amendment. Neither in his 1954 opinion nor in his brief follow-up opinion in Brown II the next year did Warren specify what schools had to do to comply. One tragic consequence of this silence was that virtually no desegregation occurred in the South for a decade and a half. Just as important, when the Supreme Court did start to issue rulings on desegregation in the late 1960s, its opinions were ambiguous, contradictory, and meandering. For decades, the high court left lower federal courts and school officials without clear guidance on how to proceed.

Linda Brown was a 3rd grader at Monroe Elementary, an all-Black school in Topeka, when her father began the legal battle to give the Browns the option of attending all-white Sumner Elementary closer to their home.

As I explain in my 2023 book, The Crucible of Desegregation, the justices have oscillated between two interpretations that I label the “colorblind/limited intervention” approach and the “racial isolation/equal opportunity” approach. The first establishes a relatively clear legal rule: in all but the most extraordinary circumstances, government cannot use race to classify or categorize its citizens. The central goal is to take a particularly pernicious weapon out of the hands of government officials. Prohibiting the use of racial classifications struck at the heart of the racial caste system in the South without requiring courts to get deeply involved in education questions—thus the “limited intervention” half of the label.

According to the alternative interpretation, Brown held out the broader promise of equal educational opportunity. Providing equal opportunity to minority students requires not just ending legal segregation but also eliminating “racial isolation,” whatever its cause. Indeed, federal judges bear responsibility for examining all features of public education to ensure schools provide adequate instruction and fair treatment to minority students.

Supporters of both interpretations can find language in Brown to support their claims. Each approach has an Achilles’ heel: the former is too easy to evade; the latter too difficult to put into effect. Not until 2007, in Parents Involved in Community Schools v. Seattle School District No. 1, did the high court spell out these competing positions, and even then, neither received support from a majority of the justices.

What Brown Didn’t Say

Although the Supreme Court ruled unanimously in Brown, Chief Justice Earl Warren approached the decision more from a social-science perspective than a strict interpretation of the Fourteenth Amendment and gave no guidance on how schools should integrate.

Writing for the Supreme Court in 1954, Warren was chiefly concerned with maintaining the court’s tenuous unanimity (which was seriously in doubt in the months leading up to the desegregation decisions), writing an opinion simple enough to appeal to the average citizen, and striking a tone that might ease the South into compliance. Although the court would soon strike down every form of state-sponsored segregation, Warren was understandably reluctant to announce such a controversial break with precedent in 1954. Therefore, he did not invoke the famous words of Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But in Bolling v. Sharpe, the companion case to Brown that struck down school segregation in the District of Columbia, Warren seemed to endorse this understanding: “Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect.” And Brown II required school districts “to achieve a system of determining admission to the public schools on a nonracial basis” (emphasis added here and below).

In Brown I, though, Warren hedged, writing, “In the field of public education the doctrine of ‘separate but equal’ has no place.” He looked “instead to the effect of segregation itself on public education.” Segregation retards “the educational and mental development of negro children” and “deprive[s] them of some of the benefits they would receive in a racial[ly] integrated school system.” When a state undertakes to provide public education, it becomes “a right which must be made available to all on equal terms.” Thus, on top of Brown’s apparent ban on racial classifications was layered a vague commitment to “equal opportunity,” to be judged in part by the effect of education practices on minority children.

In 1954–55, the court gave no indication of just what school districts had to do to comply with the ruling. Warren’s even shorter opinion in Brown II merely told school officials to desegregate “with all deliberate speed.” The standard established by the court for evaluating schools’ desegregation efforts was as vague as the schedule for achieving it was amorphous.

Colorblindness, Then and Now

In the 1950s, state-mandated separation of the races was viewed by almost all advocates of desegregation as the central problem, and prohibition of racial classifications as the obvious solution. This was definitely true of Thurgood Marshall and the other NAACP leaders who had long dedicated themselves to the cause. Their initial brief insisted that “The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race or color alone.” In oral argument, the NAACP’s Robert Carter explained that the “one fundamental contention which we will seek to develop” is that “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunity among its citizens.”

Members of the court and the NAACP litigation team recognized they would face intense opposition in the South, but they assumed the desegregation process itself would be relatively straightforward. Heading up the team, Thurgood Marshall assured the court that “the only thing that we are asking for is that the state-imposed racial segregation be taken off,” leaving local officials “to work out their solutions of the problem to assign children on any reasonable basis they want to assign them on.” That, he suggested, could be achieved in the summer. Almost everyone envisioned a return to neighborhood schools in the South—after decades of busing students past the nearest school to attend a segregated one. In the border states, de jure segregation did quickly disappear.

But in the Deep South the court’s decision was greeted with the “massive resistance” U.S. Senator Harry Flood Byrd of Virginia called for in 1954. Within two years, Byrd had amassed a coalition of nearly 100 southern politicians committed to blocking Brown’s implementation. By the late 1950s and early 1960s, southern school districts were using “freedom of choice” plans to avoid anything more than token desegregation. Almost all federal judges conceded that these plans were constitutional as long as the choices students and their parents made were in fact free, and not tainted by the presumption that students would attend their previously segregated schools. But in most cases, “freedom of choice” was little more than a transparent fraud, corrupted both by administrative manipulation and by informal intimidation. This created a major practical challenge to those who supported a colorblind interpretation of Brown.

By the second half of the 1960s, the Civil Rights Act was the law of the land, yet virtually no Black students were going to school with white students in the Deep South. Federal judges on the Fifth Circuit Court of Appeals decided that time for stalling had finally run out. Working with the Department of Health, Education, and Welfare (HEW), they demanded data to prove that formerly segregated districts had taken “affirmative action” to achieve “the conversion of a de jure segregated dual system into a unitary, nonracial (nondiscriminatory) system—lock, stock, and barrel: students, faculty, staff, facilities, programs, and activities.” Initially, the demands of the Fifth Circuit and HEW were relatively mild: nearly two decades after Brown, they required only 10 to 20 percent of Black children be enrolled in formerly all-white schools. Without such a numerical standard, it is doubtful any significant change in school enrollments would ever have been achieved. But a Rubicon had been crossed. Now racial classifications were being used to promote desegregation, not enforce segregation.

Was the use of racial assignments a temporary measure designed to wring stigmatizing racial identification out of school districts guilty of unconstitutional segregation, or was it an appropriate—even constitutionally mandated—measure for achieving racial balance in perpetuity in the North and West as well as the South? If the Supreme Court seemed to suggest the latter in the 1970s, by the 1990s it had begun to suggest the former.

Several of the justices appointed by Presidents Reagan and Bush reintroduced the colorblind interpretation of the Fourteenth Amendment that the NAACP had previously favored but long since abandoned. In 1995 Justice Clarence Thomas wrote that the “simple, yet fundamental, truth” announced in Brown is “the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.” According to Justice Anthony M. Kennedy, “Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake.” Justice Sandra Day O’Connor argued that the use of so-called “benign racial classifications” implies “confidence in [courts’] ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility.” According to Chief Justice John G. Roberts, “It is a sordid business, this divvying us up by race.”

In the 2007 Seattle case, the high court sharply limited school districts’ ability to use race-based student assignments to achieve what by then was widely known as “diversity” rather than “racial balance.” Four members of the court adopted a colorblind interpretation of the 14th Amendment, but the pivotal fifth vote was cast by Kennedy, who, in his concurring opinion, offered schools significantly more flexibility in using race-based assignment. The court’s 2023 decision in the Harvard affirmative action case suggests that it is inclined to further restrict school districts’ authority. But given how long the court has gone without issuing desegregation opinions, we should not expect a definitive decision soon.

NAACP lawyers George E. C. Hayes, Thurgood Marshall, and James M. Nabrit celebrate the Brown decision outside the Supreme Court on May 17, 1954. Hayes and Nabrit argued for the plaintiff in Bolling v. Sharpe, a companion case to Brown. Marshall later went on to become the court’s first Black justice.

From Racial Segregation to Racial Isolation

Soon after the Fifth Circuit and HEW used numerical targets to jumpstart what UCLA professor Gary Orfield has aptly described as the “reconstruction of southern education,” the Supreme Court finally broke its silence and handed down the first of a flurry of desegregation decisions. In 1968, a unanimous court announced that each school board in formerly segregated districts must “come forward with a plan that promises realistically to work, and promises realistically to work now” (emphasis in original). The demand for immediate action was certainly in order. But what does it mean “to work”? School districts, Justice William J. Brennan explained, have an “affirmative duty” to “convert to a unitary school system in which racial discrimination will be eliminated root and branch.” What, then, is a “unitary school system”? Apparently, one that entirely eliminates the “racial identification” of previously segregated schools. In Brennan’s felicitous phrase, school boards must “fashion steps which promise realistically to convert to a system without ‘white’ schools and ‘Negro’ schools, but just schools.”

Trying to guess what the justices meant, the lower courts held that for a formerly “dual” school system to eliminate “racially identifiable” schools, the racial composition of the student body in each school in the district must approximate that of the district’s overall student population. In other words, white and Black students must be distributed proportionally among all the district’s schools.

Was this a judicial remedy designed to undo the effects of decades of segregation and noncompliance? Or was it a constitutional requirement for all schools, whether or not they had engaged in intentional racial discrimination? On this crucial matter the Supreme Court remained noncommittal. But lower courts repeatedly asserted that racial imbalance by itself reduces the educational opportunities of minority students and is therefore unconstitutional.

This understanding was first enunciated in a 1967 report of the U.S. Commission on Civil Rights entitled Racial Isolation in the Public Schools. Its conclusion summarized what soon became the conventional wisdom. The “central truth” announced in the report was that:

Negro children suffer serious harm when their education takes place in public schools which are racially segregated, whatever the source of such segregation may be. Negro children who attend predominantly Negro schools do not achieve as well as other children, Negro and white. Their aspirations are more restricted than those of other children and they do not have as much confidence that they can influence their own futures. When they become adults, they are less likely to participate in the mainstream of American society, and more likely to fear, dislike, and avoid white Americans.

The commission recommended that Congress enact legislation specifying that in no public school should minority enrollment exceed 50 percent.

This “central truth” was conveyed to federal judges by a cadre of expert witnesses who testified in the trial phase of desegregation cases. For example, during the first round of litigation in Keyes v. School District No. 1, Denver, Judge William Doyle stated, “We cannot ignore the overwhelming evidence to the effect that isolation or segregation per se is a substantial factor in producing unequal educational outcomes.” Consequently, “we must conclude that segregation, regardless of its cause, is a major factor in producing inferior schools and unequal educational opportunity.” Reflecting on the testimony he had heard about the harm done by racial isolation, the trial judge in the Detroit case found it “unfortunate that we cannot deal with public school segregation on a no-fault basis, for if racial segregation in our public schools is an evil, then it should make no difference whether we classify it as de jure or de facto.” The court’s goal was simply “to remedy a condition which we believe needs correction.”

Behind this “racial isolation” argument lay two assumptions: that Brown promised not just the elimination of racial discrimination, but a broader “equal educational opportunity,” and that changing the racial composition of schools would substantially improve educational opportunities for minority students. For example, the district court judge who ordered the desegregation of San Francisco’s schools in 1970 cited the Coleman Report and the Civil Rights Commission’s study to conclude that “Black students in identifiably black schools do not perform as well as they would perform in an integrated school. . . . While integration of schools would improve the academic performance of black children, it would have little or no adverse effect on the academic performance of white children.” Similarly, the judge in the Charlotte, North Carolina case confidently asserted that “the experts all agree” not only that “a racial mix in which black students heavily predominate tends to retard the progress of the whole group” but also that “if students are mingled with a clear white majority such as a 70/30 ratio . . . the better students can hold their pace, with substantial improvement for the poorer students.” Over three decades later, Justice Stephen G. Breyer claimed that social science research indicates “that black children from segregated educational environments significantly increase their achievement levels once they are placed in a more integrated setting.”

Especially in the North, where school districts are much smaller than in the South, coming close to a 70/30 ratio proved nearly impossible. The long-term trend of suburbanization coupled with the white flight that often accompanied desegregation orders meant that ending “racial isolation” would require massive inter-district busing. This proved extraordinarily unpopular. Endorsing such measures would have required the Supreme Court both to explicitly acknowledge the “racial isolation” rationale and to endure a major political backlash—including a possible constitutional amendment prohibiting busing to achieve racial balance. In 1974 it temporarily backed away from the “racial isolation” argument, insisting that judges could impose cross-district busing only if there was evidence that the state government or the affected suburbs had engaged in discriminatory behavior.

Over the past half century, demographic change has made eliminating “racial isolation” even harder. Today, fewer than half of all public school students are non-Hispanic white. Over the next decade, the proportion of Anglos in public schools is expected to decline to 45 percent, while the share of Hispanics grows to 29 percent. In the West, Hispanics already outnumber Anglos 42 percent to 38 percent. During the first decade of the 21st century, the student bodies of the 20 largest school systems in the country were, on average, 20 percent Anglo, 38 percent Hispanic, 32 percent African American, and 9 percent Asian. In 2017 the percentage of white students was 7 percent in Los Angeles and Miami-Dade County; 5 percent in Dallas; 8 percent in Houston; 2 percent in Detroit; 12 percent in Chicago; 14 percent in San Francisco and Philadelphia; 15 percent in Boston; and 16 percent in New York City. Further complicating these calculations is the fact that a growing share of students—today about 6 percent—label themselves “interracial.” In the 1960s and 1970s, the implicit goal of desegregation plans was to make virtually all schools majority white. But today that is out of the question in many parts of the country.

The end of forced racial segregation left the dilemma of how mitigate “racial isolation,” which continued to exacerbate inequality in educational outcomes. Some cities like Boston enforced integration in the 1970s by court-ordered busing, resulting in protests and riots.

From Racial Balance to Education Quality

Recognizing the futility of trying to end “racial isolation,” many judges refocused on other techniques for improving educational opportunity. For example, Judge Arthur Garrity concluded that Boston’s entire public school system was inadequate. He rejected the NAACP’s proposed plan because it failed to address the system’s many flaws. The special master he appointed to formulate a remedial plan asked, “What the hell is the point in desegregation if there are no good schools?” During the remedial phase of litigation in Reed vs. Rhodes, the Cleveland case, Judge Frank Battisti became alarmed at the “inferior education being meted out to those who were the victims of discrimination.” He devised remedies to address “educational testing, reading programs, counseling, extracurricular activities, and relations with universities, businesses and cultural institutions.” In 1977 the Supreme Court upheld an order requiring Detroit to establish new magnet and vocational schools as well as “in-service training for teachers and administrators, guidance and counseling programs, and revised testing procedures.” Such reforms, the court claimed, would “restore the victims of discriminatory conduct to the position they would have enjoyed” had public officials not acted unconstitutionally.

The most extensive effort to improve the quality of education in schools deemed “dual” by federal judges came in Kansas City, Missouri. Judge Russell Clark explained that the “long term goal of this court’s remedial order is to make available to all [Kansas City] students educational opportunity equal to or greater than those available” to the average student in suburban schools. To accomplish this, Clark overhauled the entire school system, turning each city high school into a magnet school with a special theme, ranging from science and math to classic Greek and agribusiness. By 1995 Kansas City was spending more than any comparable school system in the country. The cost of these court-ordered reforms was about $2 billion, most of which came from the state of Missouri and the rest from tax increases mandated by the court. Unfortunately, as Joshua Dunn shows in Complex Justice: The Case of Missouri v. Jenkins, the court’s plan never came close to working. Both the number of white students in city schools and the test scores of Kansas City students continued to decline. Eventually, Black parents revolted against the court’s plan, reinstituting more traditional neighborhood schools.

By the late 1970s, preliminary evidence from school districts undergoing desegregation had begun to trickle in. Reviews of these studies, including a major assessment conducted by the National Institute of Education (NIE), found small improvements in reading by Black students in districts undergoing desegregation, but no change in mathematics. The director of the NIE project found “the variability in effect sizes more striking and less well understood than any measure of central tendencies”—not surprising, given the wide variety of desegregation plans. Thirty years later Stanford professor Sean Reardon and his co-authors wrote, “It remains unclear if, and to what extent, school racial segregation affects student achievement.”

Second graders in Austin, Texas, recite the Pledge of Allegiance in 2020. Since Brown, there has been undeniable progress in reducing the “separate” component of school segregation, yet the attainment of “equal” remains elusive.

What Works?

Over 50 years ago the Supreme Court demanded that school districts that had engaged in unconstitutional discrimination “come forward with a plan that promises realistically to work.” But it never explained what it means for a plan “to work.” In 2006, 553 social scientists signed an amicus brief in support of Seattle’s effort to use racial assignments to promote diversity in its schools. “Racially desegregated schools,” they warned, “are not an educational or social panacea and the extent of benefits will depend on how desegregation is structured and implemented.” As readers of Education Next realize, in school reform, the devil is always in the details.

In his 2019 book Children of the Dream: Why School Integration Works, economist Rucker C. Johnson analyzed longitudinal studies extending back to the 1960s and found a strong, positive long-term relationship between the number of years Black students spend in a desegregated school and their total years of educational attainment, adult wages, and health status. Similarly, he found an inverse relationship between number of years spent in a desegregated school and future incarceration and poverty rates. He attributes these beneficial outcomes to two shifts accompanying desegregation: “sharp increases in per-pupil spending” and “significant reductions in the average class sizes experienced by black children.” These changes were particularly important in the South, where for years Black schools were notoriously underfunded. Johnson found that money mattered much more than Black-white student exposure. That is, where resources increased significantly but exposure did not, students did well. Conversely, “in court-ordered desegregation districts in which school spending for black children did not appreciably change, however, although the children experienced greater classroom exposure to their white peers, they did not make a comparable improvement in their educational and socioeconomic trajectories.”

In 2022 Garrett Anstreicher, Jason Fletcher, and Owen Thompson used a similar analytic technique to analyze a larger sample of students experiencing desegregation. They found “qualitatively quite large” positive effects in the South but “no substantive effects outside of the South.” They suggested that the “impactful legacy” of desegregation efforts “lies in their systematic dismantling of the overtly segregated educational systems that prevailed in the Jim Crow South.” The “distinct paucity of effects outside the South,” in contrast, indicates “the limitations to the efficacy of legally imposed integration initiatives in certain settings.” These findings are not surprising, but they highlight the hazards of equating the legal segregation of the Jim Crow South with the “racial isolation” one finds in virtually every big city today.

In the 1960s and 1970s, judges and educational “experts” could be forgiven for believing that adjusting the racial balance of schools by itself would produce substantial education benefits. Almost no one believes that today. Over the past half century, we have substantially reduced fiscal inequities between rich and poor school districts; we have improved the quality of education provided to English learners and students with disabilities; we have created programs to improve nutrition and health care for students from poor families; we have taken a variety of steps to identify and improve substandard schools. Yet “equal educational opportunity” continues to elude us. And Covid shutdowns seem to have wiped out several decades of progress.

As school officials continue to wrestle with these difficult issues, the Supreme Court is likely to further limit the explicit use of race in assigning students to schools and to classrooms. On the one hand, it is hard to see how race-based “affinity” classes can long survive judicial scrutiny. On the other hand, the ease with which southern school officials delayed desegregation in the 1950s and 1960s indicates how difficult it will be for Asian American parents and students to invoke the colorblind argument to challenge changes in exam-school criteria. Manipulating admissions and assignment rules to get the right racial result is usually easy; proving invidious intent is usually hard. Moreover, the court’s colorblind interpretation of the Equal Protection Clause and the Civil Rights Act does not place any restrictions on the use of socioeconomic criteria to promote diversity in schools at any level.

The history of Brown shows that, under the right circumstances, court-based reform can bring about substantial change in education, both directly through court orders and indirectly by spurring other government institutions into action. But the federal judiciary’s inability to specify what “desegregation” means, why we want it, and what school districts must do to achieve it led us down many dead ends. The best way to honor Brown is to forsake heated, ideological arguments about what the decision “really means” and to focus instead on the concrete steps that evidence has shown to improve the quality of education we provide to minority students.

R. Shep Melnick is Thomas P. O’Neill Jr. Professor of American Politics at Boston College and author of The Crucible of Desegregation: The Uncertain Search for Educational Equality (University of Chicago Press, 2023).

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Behind Biden Administration’s Retreat on Race and School Discipline, Real Concern on Student Behavior

R. Shep Melnick — Wed, 19 Jul 2023 09:00:32 +0000

The U.S. Department of Education headquarters in Washington, D.C.

As k-12 schools officials struggle to address a post-Covid surge of student misbehavior and violence, they must also navigate rapid swings in civil rights directives from the U.S. Department of Education. A decade ago, the Obama administration issued lengthy guidelines on bullying, sexual harassment, and racial disparities in school discipline. It also launched hundreds of protracted investigations to enforce these demands. The Trump administration withdrew many of these guidelines, and substantially reduced the number of systemic investigations. The Biden administration has promised to return to a more aggressive approach to civil rights rulemaking and enforcement. A year ago, the Department of Education proposed new rules on sexual harassment, and announced new guidelines on discipline for students with disabilities. In May 2023 the departments of Justice and Education took yet another step, releasing a policy statement with the enigmatic title, “Resources on Confronting Racial Discrimination in Student Discipline.”

Neither a formal regulation or even a standard guidance document, “Resources” describes 14 investigations of school discipline practices completed by the Department of Education between 2012 and 2022. It includes an account of an academy in Arizona that told a student with an Afro to get a haircut. It also include the case of a school district in Utah that referred a Black student to law enforcement while giving a white student a conference for the same offense. Oddly, the two departments insist upon the limited legal significance of their report: “It does not constitute final agency action, and it does not have an immediate and direct legal effect. It does not create any new rights or obligations, and it is not enforceable. Neither the Departments’ investigations nor the summaries included below constitute a binding precedent.” “This document,” they explain, “is for informational and technical purposes only.” What guidance, then, does this report offer? Largely a set of steps school districts can take to stay in the departments’ good graces.

To understand the ongoing controversy over school discipline mandates, it is important to recognize just how limited the federal government’s power is in this area. Outside of special education, the federal government only has authority to prohibit disciplinary practices that discriminate on the basis of race, national origin, or sex. (The Individuals with Disabilities Education Act, in contrast, creates specific rules for disciplining students with individualized education plans). In 2014 the Obama administration launched an aggressive effort to substantially curtail use of out-of-school disciplinary measures (that is, suspensions and expulsions), which many claim have no educational value and contribute to the “school-to-prison pipeline.” But the only way federal regulators could address the issue was by claiming that these punishments were being applied in a racially discriminatory manner.

There is no question that if school officials punish a Black student more harshly than a similarly situated white student, they have engaged in unlawful discrimination and violated Title VI of the 1964 Civil Rights Act. But what does “similarly situated” mean? Not only that the two students engaged in the same type and degree of misconduct, but also that they had a similar history of prior transgressions. Proving “different treatment” requires detailed investigation of individual cases. Given the subjective nature of many forms of misbehavior and the fact that most such behavior is viewed only by a few people, seldom are these easy calls. Consequently, the Obama administration’s 2014 Dear Colleague Letter announced that schools “also violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating on the basis of race.” A school’s disciplinary policies and practices would be deemed to have an “adverse impact” on minority students if those students are “disproportionately” punished at higher rates or “subject to longer sanctions or more severe penalties.” Once that prima facie case has been made, the school bears the burden of demonstrating that its policy is “necessary to meet an important educational goal,” and that there exist no “comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group.” The Department of Education’s Office of Civil Rights explained that it would take a particularly hard look at policies that “impose mandatory suspension, expulsion or citations” for specified offenses, especially truancy. Such punishments, federal regulators strongly suggested, are seldom either “necessary” or “effective.”

Black students are subject to disciplinary action more frequently than white, Asian, or Hispanic students. This might be the result of discrimination, but it might also be a consequence of difference in socio-economic status, family structure, neighborhood influences, youth subcultures, and policies adopted by schools in high-crime areas. Although the 2014 Dear Colleague Letter acknowledged that racial disparities “may be caused by a range of factors,” its “disparate impact” analysis said little about them. Its primary goal was to curtail the use of out-of-school punishments. The Trump administration withdrew that Dear Colleague Letter in 2018. The Biden administration subsequently announced that the withdrawal was “under review.”

The 2014 Dear Colleague Letter was announced by the Assistant Secretary of Education for Civil Rights Catherine Lhamon. When she was nominated to regain that position in 2021, she told a Senate committee, “it’s crucial to reinstate guidance on the topic.” What is most notable about the 2023 document, though, is the extent to which it backs away both from the 2014 Dear Colleague Letter’s “disparate impact” analysis and from its blanket condemnation of out-of-school punishments. Helpful suggestions have replaced legally binding obligations. Although this shift does not preclude a return to the aggressive enforcement strategy of the Obama administration, it does seem to signal a more conciliatory federal approach to discipline issues as public schools struggle to respond to heightened levels of violence and misbehavior.

By focusing on case resolutions that span the Obama, Trump, and Biden administrations, the report seeks to downplay the obvious policy shifts of the past decade. Most of the policy changes recommended in the report are sensible and relatively uncontroversial. They include

Collecting and regularly reviewing data on disciplinary actions to identify possible discrimination;
Establishing clearer, less subjective rules on what constitutes misconduct and appropriate the punishments for various levels of misconduct;
Making sure that school policies are consistent with state law;
Reducing the role of School Resource Officials (i.e. law enforcement personnel with arrest power located within schools) in routine disciplinary matters;
Improving communications with parents, especially those with limited English proficiency;
Developing alternatives to out-of-school punishments;
Providing better training to school personnel;
Hiring more school counselors and mental health professionals; and
Providing students with “tutoring, afterschool and summer learning, and enrichment programs to help students make meaningful academic and behavioral progress.”

Note that most of these items are worthy aspirations, not enforceable rules. Whether schools will have the resources and the commitment to put them into effect is one big question. How the Department of Education will try to nudge them in that direction is another.

Why has the department retreated from its hardline 2014 stance? Perhaps the White House has pressured the department to avoid hot-button educational issues prior to the 2024 election—as it seems to have done with the department’s recent proposal on transgender students’ assignment to sports teams. So far, though, we have little information on the nature of the debate within the administration. Nonetheless, it is possible to identify four factors that likely influenced its deliberations.

The first is growing alarm among school officials and parents about post-Covid disorder in our schools. According to a report by the Brookings Institution’s Brown Center, “Schools across the country are reporting increased levels of misbehavior, including fights and more serious acts of violence.” A survey conducted by Education Week’s Research Center found that “nearly half of all school and district leaders (44 percent) say they are receiving more threats of violence by students now than they did in the fall of 2019 . . . [T]wo out of three teachers, principals, and district leaders say that students are misbehaving more these days than they did in the fall of 2019.” In this context, restricting the availability of disciplinary measures would encounter strong resistance.

The second is concern among rank-and-file teachers about their own safety and the difficulty of maintaining order in classrooms and hallways. The department’s 2014 Dear Colleague Letter initially received support from the national leadership of teachers’ unions, but eventually drew angry opposition from teachers subject to lengthy investigations and restrictions on out-of-school punishments. With teachers facing greater threats of violence within the classroom, such opposition could not be ignored—especially since it comes from a key Democratic constituency.

Third, initial research on the main alternative to out-of-school punishments—restorative justice—found that this approach to dealing with misbehavior falls far short of its supporters’ expectations. Subsequent to the 2014 Dear Colleague Letter, the RAND Corporation sponsored two randomized control studies comparing schools that instituted restorative justice programs with those that employed traditional disciplinary practices. RAND’s study of several schools in Maine found that “the middle-school student who received Restorative Practices Intervention did not report more school connectedness, better school climate, more positive peer relationships and developmental outcomes or less victimization than students in control schools did.” A second, more extensive study of schools in Pittsburgh found that the number and length of suspensions declined in elementary schools instituting restorative justice programs. However,

Despite fewer suspensions, academic outcomes did not improve in PERC schools [those instituting restorative justice programs]. At the middle grade level (grades 6-8) academic outcomes actually worsened in the treatment schools. Neither did we find fewer suspensions in middle grades. . . . We did not see fewer suspensions for male students, for students with individual education plans, or for incidents of violence or weapons violation. Neither did we see a reduction in arrests.

According to a summary of the evidence in The Hechinger Report, “The biggest insight from the Maine study was how hard it is for schools to implement restorative justice even after days of teacher training, monthly consultations and visits by coaches.”

Finally, studies of the implementation of the Obama administration’s policies found a wide gap between the policies announced in formal agreements between school leaders and federal officials on the one hand, and the actual practices of teachers and principals on the other. Within a single school district, compliance and reporting differed substantially from one school to another. That experience suggests that without substantial support from teachers and principals on the front lines, directives on discipline from Washington are likely to be ignored.

The fact that federal regulators have addressed the school discipline issue by describing the results of past investigations rather than by issuing explicit rules emphasizes the central role that such investigations play in federal civil rights policy. Especially during the Obama administration, the Department of Education has used lengthy and intrusive investigations to pressure schools to sign detailed resolution agreements. The process was the punishment, and federal policy was in effect the sum of these individually negotiated agreements. The May 2023 report does little to constrain the Department of Education. But it seems to indicate that the department has adopted a more nuanced and pragmatic approach to the school discipline issue than it did a decade ago.

Shep Melnick is the Thomas P. O’Neill, Jr. Professor of American Politics at Boston College and author, most recently, of The Crucible of Desegregation: The Uncertain Search for Educational Equality (University of Chicago Press, 2023).

This article appeared in the Winter 2024 issue of Education Next. Suggested citation format:

Melnick, R.S. (2024). Behind Biden Administration’s Retreat on Race and School Discipline, Real Concern on Student Behavior: Even the teachers are alarmed about fights, violence. Education Next, 24(1), 50-55.

The post Behind Biden Administration’s Retreat on Race and School Discipline, Real Concern on Student Behavior appeared first on Education Next.

The Title IX Spotlight Shifts from the Campus to the Schoolhouse

R. Shep Melnick — Wed, 27 May 2020 19:48:43 +0000

The U.S. Department of Education headquarters in Washington, D.C.

Already overwhelmed by the Covid-19 challenge, public elementary and secondary schools have yet another problem to address: sexual harassment. In February, the U.S. Department of Education announced a new enforcement initiative designed to “combat the troubling rise of sexual assault in K–12 public schools.” During the Obama administration, the department’s Office for Civil Rights, or OCR, focused primarily on sexual assault on college campuses. Three factors led the department to shift gears and pay more attention to elementary and secondary education: new federal legislation that prohibits schools from passing along to other districts employees who have engaged in sexual misconduct with students; an investigation of Chicago schools that uncovered pervasive sexual misconduct by teachers and students; and evidence from the department’s Civil Rights Data Collection that nearly 10,000 students in elementary or secondary schools were the victim of assault, rape, or attempted rape during the 2015–16 school year.

In early May, the department released its long-awaited regulations spelling out schools’ responsibilities for addressing sexual harassment under Title IX of the Education Amendments of 1972. This was the first full administrative rulemaking process the department has ever conducted on the subject and its most substantial effort to explain the differences between the rules that apply to K–12 schools and those that apply to colleges and universities. The department’s explanation of its new regulations runs to more than 2,000 pages. Since elementary and secondary schools will soon come under greater scrutiny than ever before, school attorneys and Title IX officers will be poring over that gargantuan document to determine what school districts must do to comply with federal law.

Evolving Disputes

Title IX says nothing about sexual harassment or sexual assault; it simply prohibits educational institutions that receive federal funds from discriminating on the basis of sex. In the 1990s, however, federal courts began to hold school districts responsible for sex-based harassment serious enough to deny a student equal access to education. In 1992, the Supreme Court ruled that a school district could be sued for monetary damages for failing to prevent serious, ongoing abuse of a student by a teacher. Then, in 1998 and 1999, the high court issued two additional decisions that established the legal framework for evaluating schools’ liability for sexual misconduct: a school is liable under Title IX only if it has “actual notice” of harassment “that is so severe, persistent, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit,” and responds to such misconduct with “deliberate indifference.” All three of these cases, it bears noting, involved elementary and secondary schools.

The Supreme Court’s standard was more lenient than the standard OCR had announced a few years earlier in a guidance document. On the day before the inauguration of George W. Bush, the outgoing Clinton administration explained that it would not follow the court’s lead. The court’s standard, it insisted, applied only to suits for monetary damages, not to the rules schools must follow to qualify for federal funding. OCR doubled down on its previous position, establishing more demanding procedures for reporting, investigating, and responding to harassment complaints. For over a decade, those 2001 guidelines remained in legal limbo, neither enforced nor repudiated by the Bush administration.

In 2010, the Obama administration began a multiagency campaign to address a problem the president claimed “threatens our families” and “tears at the fabric of our communities”: sexual violence on college campuses. The key element of that effort was a 2011 “Dear Colleague” letter authored by the head of OCR. It spelled out in detail what all schools that receive federal funds—not just colleges—must do to comply with Title IX. The new guidelines went well beyond those previously announced in specifying the procedures schools must follow in disciplinary proceedings and the remedial steps they must take both for individual victims and for “the broader student population.” The letter required schools to apply the “preponderance of the evidence” standard (sometimes described as “50 percent plus a feather”) when adjudicating complaints of misconduct rather than the “clear and convincing evidence” standard used by some colleges. The agency strongly encouraged schools to dispense with hearings altogether by instituting the so-called “single-investigator model.” This gives a single person appointed by the school’s Title IX coordinator authority not only to investigate the alleged misconduct, but also to determine guilt or innocence—with limited opportunity for appeal. The letter also established a broad definition of sexual harassment, one that swept in many forms of speech as well as conduct.

OCR then conducted hundreds of lengthy investigations of colleges and universities, most of which culminated in detailed compliance agreements. Underlying this effort was the contention that “one in five college women is sexually assaulted in college” as a consequence of the campus “rape culture.” Assistant Secretary of Education for Civil Rights Russlynn Ali explained that OCR’s “new paradigm” for sexual-harassment regulation was designed to “change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence.”

These regulatory policies were attacked by civil libertarians who claimed that OCR’s rules had eviscerated students’ due-process and free-speech rights, by many college and law-school professors who resented OCR’s intrusion into academic affairs, and by conservatives who charged that OCR had exceeded its legal authority. That the Trump administration would withdraw the Obama administration’s guidance and revise its investigation strategy was a foregone conclusion. Less clear was what would replace them. Proclaiming that “the era of rule by letters” was over, in the fall of 2017, Secretary DeVos promised to use the rulemaking procedure mandated by the Administrative Procedure Act to establish new rules rather than announce them unilaterally through “Dear Colleague” letters. It took the department over two years to complete this rulemaking process. Its initial proposal, released in November 2018, received over 124,000 comments. The department responded to most of those comments in its May 2020 announcement.

The New Title IX Regulations

The central feature of the Trump administration’s approach is a return to the framework established by the Supreme Court in 1998 and 1999. No longer would schools have broad responsibility to “change the culture,” to “end any harassment,” and to address the effects of “rape culture” on the entire student population. Now the focus was on schools’ responsibility to address particular cases of serious sexual misconduct. At the same time, the new rules go far beyond the court’s bare-bones framework to explain what constitutes harassment, what schools must do to identify and adjudicate cases of misconduct, and the remedies they must provide to victims of such misconduct.

In its 2018 proposal, the department also asked for comments on “whether there are parts of the proposed rule that will be unworkable at the elementary and secondary level, if there are additional parts of the proposed rule where the Department should direct recipients to take into account the age and developmental level of the parties. . . and whether there are other unique aspects of addressing sexual harassment at the elementary and secondary school level that the Department should consider.” Although judges and administrators had previously acknowledged important differences between K–12 students and those in postsecondary institutions, this was the first time regulators had addressed the issue directly.

The most controversial element of the proposal and the final rule was the requirement that colleges and universities hold live hearings with cross-examination in sexual harassment disciplinary proceedings. Media coverage of the issue has focused heavily on the implications of the new rules for colleges, paying little attention to the fact that this requirement does not apply to elementary and secondary schools. This was one of the two major differences between the rules that now apply to K–12 schools and those that apply to higher education. The other concerned school employees’ responsibility for reporting sexual-misconduct allegations. Here the new regulations established stricter rules for elementary and secondary schools.

These stricter rules address what has long been the most common—and most serious—criticism of the Supreme Court’s framework: If schools are responsible for addressing sexual harassment only if they have “actual knowledge” of misconduct, what is to prevent them from “sticking their head in the sand” (as one law review article put it) to avoid liability? What must students and staff do to make the school aware of possible misconduct? The new rules require colleges and universities to make it easy for those subject to harassment—and anyone else who has witnessed or heard about such harassment—to file a report with the institution’s Title IX coordinator or with any other official “who has authority to institute corrective measures.”

Once the institution has received such reports, staff from its Title IX office must meet with the “complainants” (the term used to describe the targets of the alleged misconduct), offer them various “supportive measures,” explain to them how to initiate a full investigation by filing a formal complaint, and offer them informal resolution options. The department emphasized that college students are mature enough to decide for themselves how to proceed. It claimed that research demonstrates “that respecting an alleged victim’s autonomy, giving alleged victims control over how official systems respond to an alleged victim, and offering clear options to alleged victims are critical aspects of helping an alleged victim recover from sexual harassment.” Although the Title IX coordinator retains authority to launch a full investigation without the consent of the complainant, it will usually be difficult to prove misconduct without testimony from a key witness. Postsecondary institutions can require teachers and other employees to report harassment they witness or hear about, but the regulations do not require them to do so.

K–12 schools, in contrast, must consider teachers and all other school employees “mandatory reporters.” That means that when any employee learns of possible misconduct they must report it to their school district’s Title IX coordinator, and the district must investigate the matter. This reflects a change from the department’s 2018 proposal, which had included only teachers as “mandatory reporters.” The department offered this explanation of why it extended this responsibility to all employees:

The Department is persuaded by commenters who asserted that students in elementary and secondary schools often talk about sexual harassment experiences with someone other than their teacher, and that it is unreasonable to expect young students to differentiate among employees for the purpose of which employees’ knowledge triggers the school’s response obligations and which do not. Elementary and secondary schools generally operate under the doctrine of in loco parentis. . . Further, employees at elementary and secondary schools typically are mandatory reporters of child abuse under State laws for purposes of child protective services. The Department is persuaded that employees at elementary and secondary schools stand in a unique position with respect to students and that a school district should be held accountable for responding to sexual harassment under Title IX when the school district’s employees have notice of sexual harassment or sexual harassment allegations.

Consequently, one of the most important steps schools must take to comply with Title IX is to make it clear to all employees that they must without delay report alleged misconduct to the district’s Title IX coordinator. Perhaps the most egregious failing of the Chicago school system uncovered by OCR’s investigation was to allow thousands of known incidents of serious misconduct go unreported and remain unaddressed.

Under the new Title IX rules, the grievance procedures established by K–12 “may, but need not, provide for a hearing.” Nonetheless, schools must provide to each party—and their parents—a description of the allegation and a copy of the investigative report on the incident. They must also “afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.” Some who commented on the draft proposal objected that such a procedure “exposes students to hostile proceedings, unnecessarily limits the discretion of local school officials, or obligates school districts to expend resources in an unwarranted manner.” But the department held that “written submission of questions prior to adjudication” constitutes an essential element of due process and “a procedure that benefits the truth-seeking purpose” of the grievance procedure.

The final rules also require that each party have an equal opportunity to present evidence and appeal the initial decision. The alleged perpetrator must be assumed innocent until proven guilty: the burden rests on the school to show that he or she has engaged in inappropriate conduct. The regulations warn against gender bias and sex stereotyping, whether it be of the “boys will be boys” or “girls don’t lie about sexual assault” variety.

The new rules also seek to clarify whether and when schools are responsible for misconduct that takes place outside school grounds. Title IX covers all the “educational programs or activities” offered by an institution receiving federal funds. For elementary and secondary schools this includes “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs.” Schools thus have responsibility for addressing conduct that takes place on school buses, on field trips, or at athletic events. But what about students walking home from school? Internet messages or videos sent from home computers but read at school? On these difficult matters the rules are silent. Complicating these boundary issues is the fact that some forms of harassment are covered by state criminal law and thus subject to police investigation. Consequently, public schools need to reach agreements with local police on how they will divide surveillance duties, communicate with each other, and cooperate with investigations.

As school officials well know, federal civil-rights regulations place conflicting pressures on public schools. They are expected to protect their students not just from sexual harassment, but from many other forms of bullying. At the same time, they must respect their students’ basic due-process rights—including those spelled out in the new regulations. During the Obama administration, OCR issued yet another “Dear Colleague” letter, this one warning against disciplinary procedures that have a “disparate impact” on racial minorities. That letter strongly discouraged schools from suspending or expelling students for violating school rules. Such out-of-school punishments, OCR maintained, are a key component of the “school-to-prison pipeline.” Although the Trump administration withdrew this guidance, many schools have placed stricter limits on out-of-school punishments. But if an institution allows a student found guilty of sexual misconduct to remain in school, it could expose many other students to further sexual harassment—and the school itself to liability.

Enforcement: Investigations and Lawsuits

The main reason schools should establish clear, well-publicized conduct rules and reporting procedures, and take prompt action to investigate allegations, punish transgressors, and provide remedies to victims, is to reduce risk to students. But school officials also need to be concerned about their legal liability. Frequently, they will be told that failure to follow federal regulations can lead to the revocation of federal funds, though that will seldom happen. Over the past half-century, the number of times the federal government has terminated funding for failure to comply with Title IX is exactly zero. Instead, schools need to be concerned about three other forms of sanctions: private suits for damages brought by the victims of misconduct; investigations by OCR; and investigations by state and local law enforcement.

The Supreme Court’s 1992 decision in Franklin v. Gwinnett County Public Schools held that a student subjected to serious and repeated abuse by a teacher can seek monetary damages from the school district if it can be shown that school officials knew about the abuse and did nothing to stop it. The court’s later Title IX decisions established somewhat more clearly the liability rules that apply in these cases, and the new Department of Education rules spell out in much greater detail how it will apply that framework. Consequently, schools that in good faith follow those regulations are unlikely to be assessed damages under Title IX. Conversely, failure to follow the regulations will substantially increase this risk. Since parts of the new rules are specifically designed for K–12 schools, judges will be more inclined to punish those who ignore them.

Despite all the attention devoted to sexual harassment during the Obama years, until recently, OCR devoted few resources to investigating complaints in elementary and secondary schools. Starting in 2014, OCR turned every complaint lodged against a college or university into a full-scale investigation of the entire institution. Previously, the agency had publicized investigations only at their conclusion; now, it would announce with great fanfare which schools it planned to investigate. These changes were key elements of an enforcement strategy that proved remarkably effective in convincing schools to change their policies. Since OCR could not rely on the courts to enforce the demands in its 2011 “Dear Colleague” letter and since it would never pull the trigger to terminate federal funds, it in effect made the investigative process the punishment. For colleges, these investigations—some of which lasted for years—proved costly not just financially, but in terms of their reputation. Almost all eventually agreed to OCR’s demands.

These investigations were costly for OCR, as well. With fewer than 600 staff members and about 10,000 individual complaints to investigate each year, the intense focus on sexual harassment on college campuses left OCR with few resources to investigate anything else. In 2017, the Trump administration reverted to OCR’s previous policy of turning investigations of individual complaints into institution-wide compliance reviews only when it found evidence of systemic violations. This made more enforcement resources available for the K–12 initiative announced by Secretary DeVos this February.

OCR had received complaints about sexual misconduct in Chicago Public Schools in 2015 and 2016 but began its systemwide investigation only after the Chicago Tribune published an expose on pervasive and serious misconduct by students and employees in many Chicago schools. OCR’s extensive investigation revealed that, over a four-year period, Chicago schools had received 2,800 student-on-student complaints and 280 teacher-on-student complaints. Yet, for two decades—from 1999 to 2018—the district did not even have a Title IX coordinator, the first and easiest step a district must take to comply with federal rules. OCR’s investigation culminated in a 40-page “resolution letter” and an 11-page compliance agreement with the school system. The latter included not only detailed guidelines on the structure of its Title IX office and procedures for handling of complaints, but also 13 separate reporting requirements.

The 2019 resolution letter offered disturbing details on the extent of sexual harassment in Chicago’s troubled school system. Here are just two paragraphs from that letter:

Many complaints alleged ongoing physical sexual harassment of District students, including that students were repeatedly groped, grabbed, or fondled by their peers, who were often repeat offenders with a history of sexually harassing other students. These complaints documented reports of unwelcome touching over and under clothing, on the breasts, buttocks, and groin throughout the school day and at all locations in school buildings, including in school bathrooms, on the staircase and in hallways, while lining up at the water fountain, during recess on the playground in front of their peers, in the school parking lot, on school buses while traveling for school-sponsored field trips, to extra-curricular activities, and to/from their homes to school.

OCR observed that many of the complaints described students exposing their genitals at school to and in front of peers—in the classroom, on the playground, in the school bathroom—and during field trips and extracurricular activities. Schools reported a significant number of complaints of verbal threats and harassment, with students disclosing that their classmates and peers made comments such as “I’m going to rape you in the bathroom”. . . Some students threatened more violence if their peers reported the conduct. . . The complaints suggested that some students were coaxed and pressured by their peers to send sexually explicit images and videos of themselves, which classmates then distributed widely in the school without the student’s consent. In other cases, students who engaged in consensual activities were filmed by their peers engaging in the conduct without their knowledge and consent, and fellow students then widely shared the images among the student’s peers who discussed, viewed, and shared the images during the school day. In many of these cases, students reported suicidal ideation or threatened self-harm.

The Tribune documented multiple cases of sexual assault and statutory rape by school employees, including teachers, security officers, and coaches. Equally disturbing was the school system’s failure to address these problems when they were called to their attention by students and their parents.

To what extent is Chicago an outlier? We will have a better handle on this question once OCR begins its investigation of other school systems. Meanwhile, public schools are on notice that the federal spotlight now shines on them. Complying with Title IX regulation has become more important than ever.

Because most elementary and secondary school students are minors, misconduct in K–12 schools is more likely to violate state criminal law than the type of misconduct common on college campuses. One implication of this is that private schools not subject to Title IX (because they receive no federal funding) must still recognize their responsibilities under state law. In recent years, some of the worst abuses have been discovered at private boarding schools. For example, an investigation of the prestigious St. Paul’s School in Concord, New Hampshire, by the New Hampshire Attorney General uncovered many instances of serious misconduct by both students and staff. It culminated in a settlement agreement establishing an “Independent Compliance Overseer” who would be “embedded on the St. Paul’s School campus and tasked with reporting at least biannually to the Attorney General’s Office regarding St. Paul’s School’s compliance with all of the terms of the Agreement.” Private schools, too, would be wise to comply with Title IX rules to avoid liability under state tort law.

Coming Full Circle

When federal administrators and judges first used Title IX to address the problem of sexual harassment, their focus was on elementary and secondary schools. Starting in 2010, the emphasis shifted to college campuses. To its credit, the Department of Education has now, for the first time, explained how Title IX applies in these much different contexts. As the department steps up its investigation of K–12 schools, the new rules on due process and mandatory reporting become particularly important.

Will these new rules reduce the incidence of sexual misconduct in public schools, or will they make it easier for schools to look the other way? Or will schools simply substitute one form of procedural compliance for another? The truth is that we don’t know much about the effectiveness of Title IX rules. As vice president, Joe Biden was one of the most vigorous proponents of the administration’s efforts to reduce sexual assault on campus. But six years after that campaign began, Biden wrote a letter to college presidents claiming that little had changed: “Twenty-two years ago, approximately one in every five women in college experienced rape or sexual assault. Today that number is the same.” The harsh truth is that we do not have a good handle on either the frequency of sexual assault on campus or the effectiveness of various policy responses.

What we do know is that young women who do not attend college are more likely to be the victims of sexual assault than those who do. As Professor Callie Marie Rennison of the University of Colorado has pointed out, “while people have been bombarded with the notion that universities and colleges are hotbeds of sexual violence,” the rate of sexual victimization of women without a high-school education is “more than 400 percent greater than those with a bachelor’s degree or more.” Or, to put it in another way, female students attending Chicago public schools are much more likely to face sexual harassment that seriously limits their access to education than those attending Yale, Berkeley, or even Michigan State. This does not mean we should do less to address sexual misconduct at the college level, but it does suggest that federal regulators are right to pay more attention to the problem in some of our largest school systems. Let’s hope that the new rules specifically designed for elementary and secondary schools will aid that effort.

R. Shep Melnick is Thomas P. O’Neill Professor of American Politics at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education (Brookings, 2018).

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The Mismeasure of “Enforcement”

R. Shep Melnick — Thu, 27 Feb 2020 00:00:00 +0000

Catherine Lhamon is the chair of the U.S. Commission on Civil Rights.

The U.S. Commission on Civil Rights recently released a 600+ page report on how thirteen federal agencies are enforcing civil rights laws. Like the Commission’s many previous reports, this one offers a grand tour through the extensive American civil rights state, describing the authority, responsibilities, structure, and operation of its numerous components. These include not just well known organizations as the Equal Employment Opportunity Commission, the Civil Rights Division of the Justice Department, and the Department of Education’s Office for Civil Rights, but also more obscure units such as the Office for Contract Compliance Programs in the Department of Labor, the Office for Civil Rights and Civil Liberties in Homeland Security, the Fair Housing and Equal Opportunity Office in the Department of Housing and Urban Development, and the variously named civil rights offices in Health and Human Services, the Veterans Administration, Interior, Agriculture, Treasury, and the Environmental Protection Agency. For those who must deal with any of these federal agencies, this is a valuable (if somewhat dry) source of information.

Are Rights a Reality? Evaluating Federal Civil Rights Enforcement is not just a source book on civil rights agencies, but also a heated and polemical attack on the Trump Administration. This has often been the case when the Commission releases a report during a Republican administration. Two facts have increased the level of hostility between the Commission and the White House: Donald Trump is president (what more need I say on this?); and the chair of the Commission, Catherine Lhamon, headed the Department of Education’s civil rights office during the Obama Administration. The Trump Administration has rescinded some of Lhamon’s signature initiatives, and she asked for testimony from some of the administration’s harshest critics. Given the Trump administration’s cavalier attitude toward the expertise of experienced civil servants and Congress’s failure to engage in serious oversight of regulatory programs, we should welcome such opportunities for extensive critical review of executive action.

Nonetheless, this report—like so many previous ones issued by the Commission—suffers from a basic flaw that substantially reduces its usefulness: it adopts an understanding of “enforcement” so broad and misguided that it swallows up all the controversial elements of civil rights policy. The report makes no distinction between key policy choices—for example, how to define “sexual harassment” under Title IX or the use of “disparate impact” analysis under Title VI to reduce school districts’ use of out-of-school discipline—and the strategies agencies use to induce schools and employers to comply with them. In fact, in the entire 600 pages, there is scarcely any mention of how these agencies write the rules and guidelines they then enforce. The underlying assumption is that “enforcing civil rights” means “enforcing the interpretation of civil rights statutes favored by the previous administration and a majority of the Commissioners.” “Better enforcement” means using aggressive measures to force employers and recipients of federal funds to comply with the broadest possible reading of statutory language.

If this seems like hyperbole, consider what the report says about discrimination based on sexual orientation and gender identity (which it referred to as “SOGI”). Relying on studies issued the Center for American Progress and ProPublica, the report decries the Trump Administration’s refusal to take corrective action in most “SOGI-related complaints.” The reason for that should be clear: the administration withdrew the SOGI guidance issued a few years before by the Obama Administration. In other words, the central issue is the substance of agency rules, not enforcement levels.

The Commission’s report tacitly assumes that the Obama Administration’s rules were demanded by Titles VI and VII of the Civil Rights Act. But only two years previously the Commission—with the same membership—insisted that protecting employees from these forms of discrimination required additional legislative action. The subtitle of that 2017 report was “Time for Congress to Enact Legislation to Address Workplace Discrimination Against Gay, Lesbian, Bisexual, and Transgender Americans.” It noted that “Over the past forty years, Congress has introduced multiple iterations of legislation that would prohibit workplace discrimination against LGBT Americans, but has not passed such legislation.” Until 2014, President Obama, too, insisted that prohibiting such discrimination in schools and employment required new legislation. When it became clear that Congress would not enact the bill favored by the Obama administration, the Education Department’s Office for Civil Rights issued a “Dear Colleague Letter” claiming that Title IX’s ban on “sex” discrimination included discrimination based on sexual orientation and gender identity. We can argue about the merits and the legality of that move, but presenting this as an “enforcement” matter seriously distorts the central issue.

So completely does the report sweep everything these agencies do into the category of “enforcement,” that it says almost nothing about how they establish the thousands of pages of rules, guidelines, and technical guidance they expect everyone to follow. When I testified before the Commission in November 2019, I criticized the Education Department’s Office for Civil Rights for relying entirely on unilaterally “Dear Colleague Letters” and evading the rulemaking procedures required by the Administrative Procedure Act. This was hardly a novel complaint: a few years previously two U.S. Senators had admonished Assistant Secretary of Education for Civil Rights Catherine Lhamon for her agency’s failure to follow this act. The 2019 report briefly noted this criticism, responding only with a non-sequitur: “the United Supreme Court has issued a unanimous and dispositive ruling on the question, which determined that agencies do have authority to issue policy guidance.” Of course they do. But that is not the question. The problem is that the Education Department’s Office for Civil Rights has repeatedly used a truncated process that limits public participation and information gathering when it makes key policy choices. It then insists that those subject to regulation comply with this “guidance” or face severe consequences.

In 2014 Senator Lamar Alexander pressed then-Assistant Secretary Lhamon on the status of Office for Civil Rights guidance documents and her agency’s repeated refusal to use the notice-and-comment rulemaking procedures required by the Administrative Procedure Act. When asked whether she “expects institutions to comply with your title IX guidance documents,” she answered unequivocally: “Yes we do.” When asked why the formulation of these federal mandates does not require the use of standard rulemaking procedures, she replied, “We would if there were regulatory changes.” Why did the lengthy, detailed, and controversial rules the Office for Civil Rights had issued on sexual harassment in 2010 and 2014 did not constitute “regulatory changes”? Because, Lhamon responded, “That is actually what the law is, and its guidance about the way we enforce.” In other words, she was claiming, there were no policy choices involved here, or in the hundreds of other pages of Office for Civil Rights guidance issued under Titles IX in the preceding decades. All these detailed requirements were simply deductions from the statute’s 39-word prohibition of sex discrimination.

This is an absurd and disingenuous claim, as anyone who has read these guidance documents well knows—to say nothing of those who have faced the difficult job of writing them or complying with them. But it helps us understand the central conceit of this and many previous Commission reports. Under the view expressed by the report, the rules enforced by civil rights agencies and courts are not the result of policy choices that should be explained and debated in public or subject to revocation by subsequent administrations. Rather, they are the product of administrator’s progressively evolving understanding of what statutory and constitutional rights mean. And this evolution proceeds in only one direction: toward a more expansive understanding of nondiscrimination rights—no backsliding. Law professors call this “dynamic interpretation.” Those subject to this growing body of rules often call it administrative aggrandizement. The Commission just calls it “enforcement.”

What we most want to know about civil rights enforcement is how effective it has been in reducing various forms of discrimination. Unfortunately, the report does not tell us anything about that, and for a very good reason: we have no reliable way of measuring what we most want to know. The report correctly notes that “civil rights offices do not use a standard metric to measure efficacy.” The chapters on particular agencies describe the measures each uses to evaluate how well it is doing. Most count up how many complaints they have resolved in a timely manner. Some try to give more weight to bigger cases. Such measures help us understand how agency personnel spend their time. But they tell us almost nothing about the effect of these activities on the real world. That is not the agencies’ fault. The sad fact is that we just don’t know how to do it.

The report correctly notes that the way most civil rights agencies try to measure their effectiveness has allowed the Trump administration (like the administrations of Ronald Reagan, George H.W. Bush, and George W. Bush) to tout their effectiveness by closing cases quickly—which usually means with a finding of no violation. There is a deep irony here. By placing so much weight on enforcement rather than policymaking, the Commissioners and their allies in advocacy groups have unintentionally made enforcement statistics the chief battleground. However dubious complaint-resolution numbers may be, they provide a politically cogent Republican response to the Democrats’ insufficient-enforcement critique.

The strangest feature of the Commission’s report is that it devotes more than 600 pages to describing the policies of civil rights agencies yet ignores the controversies that have engulfed these agencies for decades. How do we define that key word, “discrimination”? Must administrators and judges find “disparate treatment,” or is a showing of “disparate impact” sufficient? How do we know when a school district has become “unitary,” and thus can be released from a desegregation order? Should school districts be allowed to assign students to particular schools on the basis of their race in order to promote racial integration? Does “discrimination on the basis of sex” include discrimination on the basis of gender identity? When does sexual misconduct by individual students become “sex discrimination” by an educational institution? What form of language instruction is sufficient to demonstrate that a school has not discriminated on the basis of “national origin”? What constitutes an “appropriate education” for students with severe disabilities? The report is silent on these matters because it assumes—contrary to everything we all know—that they have been resolved by the statutes enacted by Congress.

The Commission’s staff is to be commended for compiling so much data on civil rights agencies. But in the end the reader is left wandering among the trees, without any guidance on the contours or the significance of the forest. One cannot hope to understand or evaluate the enforcement activities of federal agencies without understanding and evaluating the substance of the rules and regulations they are enforcing. But that would open up political questions the Commission seems intent upon avoiding.

R. Shep Melnick is Thomas P. O’Neill, Jr., Professor of American Politics at Boston College.

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New Title IX Rules Require Hearings, Cross-Examinations in Colleges But Not High Schools

R. Shep Melnick — Wed, 16 Jan 2019 00:00:00 +0000

Educators have until January 28 to comment on the Department of Education’s proposed new rules on sexual harassment and assault, which for the first time draw a clear distinction between how colleges and high schools should handle the issue.

The proposed rules implementing Title IX of the Education Amendments of 1972 were released in November, more than a year after Secretary DeVos had withdrawn the Obama administration’s guidelines on the subject and promised to follow standard notice-and-comment rulemaking procedures to replace them. Once the comment period ends, the Department must respond to all “significant” comments and explain any changes it decides to make in the interim. The final rules will be subject to judicial review, making further litigation all but inevitable. The incoming chairman of the House Education and Labor Committee, Representative Bobby Scott, has promised to hold hearings on the proposal, which he and many other Democrats in Congress have harshly criticized. The battle over federal sexual-harassment rules is thus likely to drag on for many months, leaving educational institutions unsure exactly what is required of them.

So far, the most controversial sections of the proposal are those requiring schools to hold live hearings for college disciplinary proceedings and to allow cross-examination of all witnesses, including those who have lodged sexual-assault complaints. The Department maintains that live hearings with cross-examination are essential elements of due process. Its critics warn that these requirements will inhibit victims of sexual misconduct from coming forward.

Overlooked in most press coverage of the topic is the fact that the proposal does not impose these two requirements on elementary and secondary schools. Indeed, a key feature of the proposal is that for the first time the Department has addressed the differences between colleges and universities on the one hand and elementary and secondary schools on the other. Moreover, it has asked for comments on “whether there are parts of the proposed rule that will be unworkable at the elementary and secondary school level, if there are additional parts of the proposed rule where the Department should direct recipients to take into account the age and developmental level of the parties involved . . . [and] whether there are other unique aspects of addressing sexual harassment at the elementary and secondary school level that the Department should consider.” Since this is the first time the Department has gone through the full notice-and-comment rulemaking procedure on the sexual-harassment issue, school officials should take advantage of this opportunity to weigh in on these topics.

Differences without Distinctions

The judges and administrators who developed regulatory requirements under Title IX have occasionally noted the differences between college-age students and students in elementary, middle, and high school. Yet they have seldom explained how these differences affect the legal responsibilities of school officials. In part this is a result of the peculiar way federal guidelines have evolved. When the issue of sexual harassment on campus first emerged in the 1990s, the primary focus was on middle and high schools, with little attention to the post-secondary context. All the major court decisions, including the three major Supreme Court cases, involved students under the age of 18. Starting in 2010, the Obama administration launched an aggressive campaign to curb sexual assault on college campuses. This time, in contrast, federal regulators paid almost no attention to elementary and secondary schools. Yet all of these rules, regardless of their original focus, apply to every educational institution receiving federal funds—which means all public schools and almost all private colleges in the country. Moreover, because the Obama Department of Education relied on unilateral “Dear Colleague Letters” rather than notice-and-comment rulemaking, there was little opportunity to explore how students of different ages should be treated.

There are many reasons why age matters in this context. First, as Justice O’Connor wrote in a seminal Title IX case, “children may regularly interact in a manner that would be unacceptable in adults . . . they often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it,” but not “serious enough to have the systemic effect of denying the victim equal access to an educational program or activity.”

Second, since most students in elementary and secondary schools are minors, sexual misconduct by teachers and other staff members is usually a criminal matter. Colleges can debate whether or not to allow romantic relationships between professors and graduate students. But elementary schools cannot tolerate sexual relations between a teacher and a sixth-grader. They have a responsibility not only to take immediate disciplinary action, but to alert the police.

Third, college students have far more unstructured, unsupervised time during the day than do elementary and secondary school students. They have dorm rooms, fraternities, and on-campus drinking parties—places where serious sexual misconduct is particularly likely to occur. In contrast, for much of the day elementary- and secondary-school students are subject to parental control. It is not the school’s responsibility to monitor their activity once they leave school property or finish a school activity.

Fourth, students do not have a right to attend college, but they do have a right to a primary and secondary education. That means that colleges have greater discretion over the suspension and expulsion of students—the most common punishments for sexual assault. Paradoxically, while the Obama Department of Education was demanding that schools crack down on sexual violence, it was also pushing public schools to reduce their use of out-of-school punishments. School officials were given little guidance on how to square these competing demands.

Regulators have from time to time acknowledged these age differences, and have routinely urged schools to establish “age-appropriate” policies. For example, when a North Carolina school relied on Department guidelines to discipline a six-year-old for kissing another student on the cheek, the Department’s Office for Civil Rights explained that “a kiss on the cheek by a first grader does not constitute sexual harassment.” But it did little more to clarify where schools should draw the line.

The Shifting Focus of Regulation

The main reason federal rules on sexual harassment have been shifting and unclear is that Title IX itself says nothing on the subject. It merely prohibits sex discrimination by educational institutions receiving federal funds. Federal mandates on sexual harassment emerged slowly, first in court decisions, then in administrative guidelines. Neither the courts nor the Department of Education had much to say on the topic until the early 1990s—nearly twenty years after enactment of the statute. Adopting legal arguments developed in Title VII employment cases, federal judges eventually determined that sexual harassment constitutes sex discrimination under Title IX if such noxious behavior is aimed at members of one sex and is serious enough to limit a student’s educational opportunity. (Oddly, this left those who engage in indiscriminant harassment of both sexes off the hook.)

Judges and administrators then confronted the more complicated question of when educational institutions should be held responsible for the conduct of faculty, staff, and students. To what extent should school officials be expected to monitor and control the behavior of thousands of people, an undertaking made especially difficult by the fact that much of the activity in question takes place in private? Their answers—the plural is important since there were many disagreements—emerged in two stages, the first in the 1990s and the second in the 2010s.

During the 1990s, publicity and litigation over sexual misconduct by elementary- and secondary-school teachers and students drove the regulatory agenda. On the heels of the 1991 Anita Hill–Clarence Thomas hearings, Seventeen magazine published an article on sexual harassment in elementary and secondary schools, and it encouraged readers to report on their experiences. Over 4,000 students did so. A subsequent article in the magazine reported that 90 percent of the respondents had been subject to some form of sexual harassment, nearly 40 percent on a daily basis. In 1993 the American Association of University Women published a study entitled Hostile Hallways claiming that the vast majority of high school girls had been subject to sexual harassment of some form. Although hardly systematic studies, these findings were widely reported in the press.

In 1992, the Supreme Court held that under Title IX federal judges could order a public high school to pay monetary damages for failing to take disciplinary action against a teacher who had engaged in sexual relations with an underage student (Franklin v. Gwinnett County Public Schools). Given the Rehnquist Court’s general inclination to restrict judicial remedies, this decision was surprising. The Court was likely influenced by the fact that the alleged misconduct was not only repeated and serious, but criminal. The Court made no effort to explain what constitutes actionable misconduct or when schools will be liable for the misconduct of employees or students. Answers to those questions would await years of further litigation.

The number of Title IX cases against public schools quickly grew. Most involved allegations of harassment perpetrated by other students, not teachers—behavior that is much harder for school officials to monitor and control. Lower courts were all over the map on which liability standard to apply. Some ruled that schools were liable if they “knew or should have known” about behavior that created the hostile environment. Others held that schools would be held responsible only if they had “actual knowledge” of the behavior and failed to take corrective action. Most agreed that liability for misconduct by teachers should be stricter than for peer harassment. This uncertainty produced anxiety among public-school leaders. Publications such as Education Week added to the sense of crisis by running stories that exaggerated schools’ risk of losing expensive damage suits.

School officials pleaded for clarification of their responsibilities, and in 1997 the Department’s Office for Civil Rights announced guidelines spelling out the steps schools should take to protect themselves from costly litigation. It expected schools not just to respond quickly and effectively to particular incidences of misconduct, but to “take steps reasonably calculated to end any harassment, eliminate a hostile environment if it has been created, and prevent harassment from occurring again”—an undertaking that not only went well beyond anything the courts had previously required, but would be extraordinarily difficult (if not Sisyphean) in large institutions.

Soon thereafter, the Supreme Court granted review in two Title IX cases, one involving misconduct by a middle-school teacher (Gebser v. Largo Vista Ind. Sch. Dist., 1998), the other peer harassment aimed an elementary-school girl (Davis v. Monroe City Board. of Education, 1999). In both the Court adopted a relatively lenient liability standard: schools were liable for damages only if they had “actual knowledge” of the misconduct in question and acted with “deliberate indifference.” Moreover, to violate Title IX, harassment must be “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Justice O’Connor cautioned judges to “refrain from second-guessing the disciplinary decisions made by school administrators.”

In January 2001—on the very last day of the Clinton administration—the Office of Civil Rights announced that it would not adopt this standard: it expected schools to take a number of additional steps to address the problem. The Court’s liability standard, it explained, applied only to private suits for monetary damages. Its more demanding administrative rules would be enforced through an alternative mechanism: the termination of federal funds. But since the Department has never terminated funding under Title IX, everyone knew this was an empty threat. For a decade, the Department made little effort to enforce the Clinton administration’s midnight guidelines.

Phase two began in 2010, when the Obama administration began an aggressive effort to curb what it repeatedly described as the “epidemic” of sexual assault on college campuses. To this end it issued a detailed “Dear Colleague Letter” in 2011, added an even longer guidance document entitled “Questions and Answers on Title IX and Sexual Violence” in 2014, and launched hundreds of lengthy investigations of colleges and universities. These guidelines and investigations generated intense controversy and gobbled up agency resources. How rules developed with colleges in mind would apply to schools for younger children remained unaddressed. Investigations of complaints against elementary and secondary schools were placed on the backburner.

Although the Office of Civil Rights once again threatened to terminate federal funding to schools that failed to comply with its detailed mandates, it never pulled the trigger. Instead it developed an innovative and largely successful enforcement strategy: turn each individual complaint into an investigation of the entire college or university; make these investigations so costly (in terms of reputation as well as money) that schools will sign legally binding agreements to end them; and use these agreements to build within each school an internal compliance organization that shares the perspective of federal regulators.

As a consequence, the gap between administrative and judicial interpretations of schools’ responsibility that first appeared in 2001 had become a chasm by 2014. The Department’s November 2018 proposal, in contrast, described the Supreme Court’s Gebser and Davis interpretations of Title IX as “foundational.” The stated purpose of the proposal is “to better align the Department’s regulations with the text and purpose of Title IX and Supreme Court precedents and other case law.” That requires wholesale revision of the administrative rules announced between 2001 and 2014.

Acknowledging the Difference

As part of that restructuring, the Department of Education for the first time has proposed different rules for different types of educational institutions. This was particularly clear on two matters: who is responsible for reporting sexual misconduct; and whether disciplinary proceedings must include live hearings and cross-examination.

For colleges, the proposal held that in most circumstances an institution does not have “actual knowledge” of alleged misconduct unless a student files a formal complaint with the Title IX coordinator. The fact that a faculty member or other staff member has heard about the allegation does not constitute the “actual knowledge” the Supreme Court required for imposing liability. For elementary and secondary schools, though,

actual knowledge can also come from notice to a teacher. The Department recognizes that the Supreme Court has not held definitively that teachers are ‘appropriate officials with the authority to take corrective action’ with respect to student-on-student sexual harassment; however in the elementary and secondary school setting where school administrators and teachers are more likely to act in loco parentis, and exercise a considerable degree of control and supervision over their students, the Department believes this interpretation is reasonable.

In short, elementary- and secondary-school teachers “should be considered to have the requisite authority . . . to trigger a recipient’s obligations under Title IX.”

No provision in the proposal has been more controversial than the requirement that colleges hold live hearings and allow cross-examination in sexual assault disciplinary proceedings. But as noted above, the proposal does not impose this mandate on elementary and secondary schools: “Because most parties and many witnesses are minors in the elementary and secondary school context, sensitivities associated with age and developmental ability may outweigh the benefits of cross-examination at a live hearing.” Consequently, the proposed rule “allows—but does not require—elementary and secondary schools to hold a live hearing as part of their grievance procedures.”

The November proposal thus opened a long-delayed discussion about how Title IX should be applied in different settings. Unilaterally issued “Dear Colleague Letters” tend to shut off debate: they ask for comments only after federal mandates have been announced. Notice-and-comment rulemaking, in contrast, is designed to invite public reaction. School officials should jump at this opportunity to explain to regulators the challenges they face in applying Title IX rules to children of varying ages.

R. Shep Melnick is the author of The Transformation of Title IX: Regulating Gender Equality in Education (Brookings, 2018).

The post New Title IX Rules Require Hearings, Cross-Examinations in Colleges But Not High Schools appeared first on Education Next.

Rethinking Federal Regulation of Sexual Harassment

R. Shep Melnick — Wed, 06 Sep 2017 00:00:00 +0000

Students at Dickinson College march in support of harsher consequences for students who commit sexual offenses.

Over the past decade, federal regulation of education under Title IX has been sucked into the impetuous vortex of partisan polarization. Title IX of the Education Amendments of 1972 prohibits schools that receive federal funding from discriminating on the basis of sex. For decades, intercollegiate athletics was the main source of controversy. Support for and opposition to federal policy on that topic crossed party lines.

No longer. Starting in 2010, the Obama administration issued an unprecedented number of Title IX directives and launched hundreds of investigations. Democrats in Congress cheered these moves as a long-overdue response to bullying at K–12 schools and sexual assault on college campuses. The 2016 Republican Party platform, in contrast, charged that the original purpose of Title IX had been perverted “by bureaucrats—and by the current President of the United States—to impose a social and cultural revolution upon the American people.”

The Trump administration has already taken a number of steps to modify Title IX policies. Last February, it revoked the Obama administration’s “Dear Colleague” letter (DCL) on transgender students’ access to sex-segregated facilities such as bathrooms and locker rooms. Over the summer, the Department of Education’s Office for Civil Rights (OCR) altered its procedures for investigating sexual violence complaints. Soon thereafter Secretary of Education Betsy DeVos announced that her department would conduct a thorough reevaluation of all its sexual harassment guidance documents.

This unleashed a torrent of criticism from across the aisle. Thirty-four Democratic senators told DeVos that they were “extraordinarily disappointed and alarmed” by this apparent shift in policy. Twenty Democratic state attorneys general also wrote the secretary “to express our serious concern over reports that your office is preparing to roll back important protections for survivors of sexual assault on college campuses.” The editorial board of the New York Times saw this as “Another Sign of Retreat on Civil Rights.” An op-ed in the Times by author John Krakauer and activist Laura Dunn set the tone of the coming debate: if the Trump administration succeeds in revising Title IX guidelines, “The result may make colleges safer. For rapists.”

The Trump Challenge

Rather than nominating an assistant secretary for civil rights, the Trump administration avoided a confirmation battle by making Candice Jackson “acting assistant secretary.”

Needless to say, on this issue the Trump administration has a serious credibility problem. Not only has the president repeatedly made demeaning comments about women, he has even bragged about committing sexual assault. His secretary of education has yet to demonstrate an adequate understanding of the legal obligations of her department. Rather than nominating an assistant secretary for civil rights, the White House avoided a confirmation battle by making Candice Jackson “acting assistant secretary.” Jackson has no previous government experience. She apparently came to Trump’s attention by parading in front of the media some of the women allegedly harassed by Bill Clinton and by making wild accusations about Hillary Clinton. While in office, she has made imprudent off-the-cuff remarks regarding sexual abuse allegations, for which she later apologized.

This is not exactly a group that inspires confidence.

Since OCR’s controversial guidelines were established through unilateral administrative action, at first glance it would seem that they can be rescinded in a similar fashion. In 2011, President Obama announced the strategy: “We can’t wait for an increasingly dysfunctional Congress to do its job. When they won’t act, I will.” For OCR, this “We Can’t Wait” campaign included not just Title IX guidelines but Title VI rules on school discipline, affirmative action, education for English language learners, and allocation of school resources (see “Civil Wrongs,” features, Winter, 2016). In each instance, OCR evaded standard rule-making procedures by claiming that it was merely clarifying existing policy—despite the fact that the White House described these initiatives as “ground-breaking.”

President Trump clearly has a fondness for governing through hastily written executive decrees. For a number of reasons, though, the Trump administration cannot simply rescind most previous OCR directives and walk away from the sexual harassment issue as it did transgender rights. Court decisions and agency policy stretching back to the early 1990s have established schools’ responsibility under Title IX to respond to known or systematic sexual harassment. OCR’s current guidelines are long and detailed. Schools need to know which of these requirements are still operative. Moreover, a number of schools have already signed settlement agreements with OCR, and many more have changed their policies to comply with its demands. They will be reluctant to alter their practices unless they are sure they will not be subject to further investigation or to court suits.

This means the Department of Education must revise its guidelines in a way that federal judges and educational institutions find reasonable, which will require considerable political skill from an administration notorious for its impetuousness and ham-handedness.

It is important to remember that although discussion of sexual harassment has focused on colleges, OCR’s rules also apply to K–12 schools. Scores of public schools have been investigated, and many have signed detailed resolution agreements. There is also considerable overlap between OCR’s guidance on sexual harassment and its 2010 DCL on bullying, which was aimed primarily at elementary and secondary education.

The National School Boards Association’s general counsel criticized that DCL for “creating an expectation that school officials are to respond to each and every offensive incident as if it were a civil rights violation,” thus “needlessly drain[ing] school resources and attention from the more crucial task of fostering an appropriate climate while minimizing the professional discretion of local educators to craft workable, individualized solutions.” For the past seven years, OCR has paid scant attention to these legitimate concerns. As the department reviews its guidelines, public school officials have an opportunity to explain the practical implications of these federal mandates.

Sadly, it is likely that the debate over Title IX regulation will fall into the usual political rut: Democrats will decry any change as part of Republicans’ “war on women,” and the Department of Education will cover its tail by relaxing enforcement rather than rewriting its guidance. But there are several compelling reasons for Democrats to tone down their hyperbolic attacks and for the Department of Education to undertake a thorough reexamination of federal rules.

Civil Liberties

First and most important, this is one of the rare contemporary issues that does not fit easily into the usual left/right divide. OCR’s regulations have received sustained criticism from a wide array of scholars, professional groups, and civil libertarians usually aligned with the Left.

Nowhere is this more clear than in an open letter recently released by four distinguished women professors at Harvard Law School. They urge OCR to revise its guidelines in order to ensure “fairness for all students under Title IX.” They point out that the current definition of sexual harassment is so broad that it “often involves mere speech about sexual matters.” The procedures schools have adopted under pressure from OCR “are frequently so unfair as to be truly shocking.” This sends “a dreadful message, that fairness is somehow incompatible with treating sexual misconduct seriously.”

A task force of the American College of Trial Lawyers issued a similar warning: “OCR has established investigative and disciplinary procedures that, in application, are in many cases fundamentally unfair to students accused of sexual misconduct.” A federal district court judge in Massachusetts described the process used by Brandeis University as “closer to Salem, 1692, than Boston, 2015.” Another judge charged that “due process has been completely obliterated” by the actions of the University of California, Davis.

In 2016, the American Association of University Professors issued a highly critical report on OCR’s Title IX policies, pointing out that “faculty in disciplines related to gender and sexuality” are particularly “vulnerable to the chilling effect of potential hostile environment charges and are disproportionately affected in their teaching and research due to universities’ adoption of overly broad definitions.” Nadine Strossen, former president of the ACLU, devoted her 2015 Salant Lecture at Harvard to warning of the dangers to freedom of speech posed by OCR’s policies.

Anyone who has read The Campus Rape Frenzy by KC Johnson and Stuart Taylor Jr. or Unwanted Advances by Laura Kipnis will have a hard time denying that OCR’s rules and the agreements they have forced schools to sign threaten both due process of law and free speech on campus. It is hard to believe that the federal government is incapable of striking a better balance.

Rule of Law

Second, OCR’s reading of its authority under Title IX goes far beyond the interpretation adopted by the Supreme Court in two decisions that squarely addressed the sexual harassment issue. On most Title IX matters, OCR has stayed close to the courts’ interpretation of federal law. It has a strong reason for doing so: Since termination of federal funds (the main enforcement tool created by Title IX) is administratively awkward and politically suicidal, OCR relies on “private rights of action” filed in federal court to provide its directives with enforcement teeth. When schools know they can be sued for damages and injunctive relief, they become far more willing to negotiate with OCR.

In Gebser v. Lago Vista Independent School District (1998) and Davis v. Monroe County Board of Education (1999), the Supreme Court adopted a narrow reading of schools’ responsibility for sexual harassment by employees and other students. A school will be held liable for damages only if an official who “has authority to institute corrective measures” has “actual knowledge of, and is deliberately indifferent to” the misconduct.

Moreover, schools will be held liable “only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” To be covered by Title IX, such misconduct must be “serious enough to have the systematic effect of denying the victim equal access to an educational activity or program.” “Although, in theory, a single instance of sufficiently severe one-on-one peer harassment” could have the effect of denying students equal access to educational programs, the court found it “unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment.” The court also stressed that judges “should refrain from second-guessing the disciplinary decisions made by school administrators.”

On the last day of the Clinton administration, OCR issued revised guidance that explicitly rejected this view of schools’ responsibility. For example, OCR announced that “a single or isolated incident of sexual harassment may, if sufficiently severe, create a hostile environment.” When the University of Montana incorporated the language of the Supreme Court into its official policy, OCR demanded that it be removed. Schools bear responsibility for investigating “any unwelcome conduct of a sexual nature.” Most importantly, OCR’s 2011 and 2014 guidelines contained page after page devoted to “second-guessing the disciplinary decisions made by school administrators.”

OCR justified its break with the court by claiming that its interpretation applies only to court suits for damages, not to demands made by federal administrators. Recognizing that the Supreme Court might not take kindly to being ignored in this way, OCR has done all it can to avoid judicial review, even to the extent of telling senators and judges that its guidelines are just advisory, not legally binding. That, of course, is not the message it has been sending to school officials.

Not only has OCR thumbed its nose at the Supreme Court’s interpretation of Title IX, but schools that have instituted new disciplinary procedures under pressure from OCR have been repeatedly castigated by lower-court judges for disregarding procedural fairness.

Cultural Imperialism

Third, although disciplinary procedures have received the most publicity, OCR’s sexual harassment rules go far beyond this, constituting a dangerous and unauthorized intrusion into students’ lives and beliefs.

In 2010, then Assistant Secretary of Education for Civil Rights Russlynn Ali told reporters that the Obama administration’s DCLs and enforcement practices represented a “new paradigm” for dealing with sexual harassment. No longer would the focus be on identifying and disciplining perpetrators. Now the goal was to “change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence on our college campuses across the country.” This theme was emphasized by a 2014 White House report: “Sexual assault is pervasive because our culture still allows it to persist. According to the experts, violence prevention can’t just focus on the perpetrators and the survivors. It has to involve everyone.”

Repeated references to an “epidemic” of sexual assault by OCR and advocacy groups are not just overheated rhetoric. Behind the talk of “rape culture” lies a certain worldview: violence against women is so deeply engrained in our culture that we hardly see it; existing institutions will do nothing about it until they are reconstituted; and addressing the problem requires us to change the way all of us think about sex, gender, and sexuality.

“Changing the culture” is an unusually ambitious educational undertaking. That is why no word is repeated more frequently in OCR’s policy directives than “training.” Schools must provide regular training, not just for investigators and adjudicators but also for all students, faculty, and staff, usually at least once a year. OCR requires prior approval of schools’ training programs, and offers lots of advice on what should be included. The agreement with Tufts University, for example, mandates training on “victim behavior, dynamics of power, [and] implicit bias.” Dynamics of power? Should federal administrators have a big say on what schools teach their students on this politically loaded topic?

In their important 2016 California Law Review article on “The Sex Bureaucracy,” Harvard Law professors Jacob Gersen and Jeannie Suk note that the “college sex bureaucrats” who run these federally mandated programs “are not simply training students on the rules of rape, sexual assault, and sexual harassment.” Rather,

they are instructing on, advising on, counseling on, defining, monitoring, investigating, and adjudicating questions of sexual desire. . . . Sexual violence education and prevention programming is rapidly morphing into sex instruction reminiscent of guidance provided by sex therapists like Dr. Ruth. This jibes well with the public health framework that has so strongly influenced the federal regulatory orientation to sexual violence. Since the sex bureaucracy’s role is regulating health and safety, explanations of consent easily lead to instruction about what is “healthy” or “positive” in sex and relationships.

The ambition to “change the culture”—not just on college campuses but throughout the nation—lies behind many other elements of OCR’s guidelines. For example, colleges must provide remedies to victims “regardless of where the conduct occurred,” because “students often experience the continuing effects of off-campus sexual harassment in the educational setting.” This includes harassment by non-students over whom the school has no control.

Most importantly, OCR requires schools to regulate not just the behavior of their staff and students but what the agency calls “verbal conduct”—and the rest of us call speech. Its definition of “sexual harassment” includes “unwelcome” sexual advances “whether or not they involved physical touching.” This includes “making sexual comments, jokes, or gestures”; “distributing sexually explicit drawings, pictures, or written material”; “calling students sexually charged names”; and “showing or creating e-mails or Web sites of a sexual nature.”

If that is not sweeping enough, the guidelines also prohibit “sexual-stereotyping,” which includes “persistent disparagement of a person based on a perceived lack of stereotypical masculinity or femininity.” To violate Title IX, harassment “does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.”

Under pressure from OCR and student activists, many schools have extended their definition of “sexual harassment” to prohibit even more forms of speech. Harvard prohibits “sexually suggestive innuendoes” and even “commenting about . . . an individual’s body.” Marshall University defines harassment as any expression that causes “mental harm, injury, fear, stigma, disgrace, degradation, or embarrassment,” while Colorado State University at Pueblo explains it as the “infliction of psychological and/or emotional . . . through any means.” Some schools have expelled students for messages sent on social media, including tasteless jokes aimed at no one in particular.

OCR’s regulations are hardly the only threat to freedom of speech on college campuses, but they are a significant one, and for reasons spelled out below, a source of institutional support for students and college bureaucrats eager to ban any speech they find offensive.

In 2013 and 2014, the Obama-appointed head of OCR Catherine Lhamon threatened to cut off federal funding to schools. But everyone knew this was a bluff.

Bureaucratizing Our Schools

Fourth, OCR’s post-2010 enforcement strategy—which can best be described as “harass and colonize”—sought to change colleges’ structure and priorities in a way that will be especially difficult to undo.

OCR’s break with the courts presented a serious enforcement problem: how could it induce schools to comply with its requirements now that court-based enforcement was unavailable? In 2013 and 2014, the Obama-appointed head of OCR Catherine Lhamon threatened to cut off federal funding to schools. But everyone knew this was a bluff. In Title IX’s 45-year history, OCR has never terminated funding. “Going nuclear” is not only politically dangerous but exposes OCR’s guidelines to judicial review—something it is desperate to avoid.

OCR’s decision to publicize its investigations was one part of a clever two-pronged enforcement strategy. It would pressure schools to negotiate legally binding agreements by subjecting them to investigations that would be expensive in both monetary and reputational terms. These lengthy investigations were not primarily information-gathering exercises. Rather, they were designed to bludgeon schools into submission. The process, as they say, became the punishment. Colleges face stiff competition for attracting students. Who wants to be accused of tolerating an “epidemic of sexual assault”? Most of the resulting agreements go well beyond what OCR’s official guidance explicitly requires. For example, many schools have adopted the “single-investigator” model” that OCR “recommends” but does not openly demand.

In addition, OCR required schools to create large Title IX offices with close ties to OCR and student activists. These offices will remain long after OCR’s policy shifts.

Before 2014, OCR had refused to publicize an investigation until it had found a violation of the law and reached an agreement with the school in question. Over the next three years, it publicly announced every sexual assault investigation against a college from the outset in order to increase pressure on schools to settle.

Just as important, OCR turned every individual sexual-assault complaint into a full-blown compliance review of the entire institution. This was expensive and time-consuming for both the targeted institution and for OCR. Of the nearly 350 investigations OCR has initiated against colleges since 2011, only 72 had been concluded by the end of August 2017 (see Figure 1). The average length of these investigations is about two years, with some dragging on for five or six.

According to a Chronicle of Higher Education report, “Longtime leaders can’t recall another issue that so consumed colleges. . . . Some presidents say they’ve spent half their time on the issue—and serious money, limiting their ability to add another mental-health counselor, for example, or hold down a tuition increase.” Peter Lake of Stetson University, a leading expert on Title IX compliance, describes the process in this way: “They come into your closet and say, ‘Everything is in order, but we just went into your dresser and your socks aren’t matching.’” He estimates that from 2011 to 2015 colleges have spent more than $100 million to comply with Title IX sexual-harassment guidelines.

This enforcement strategy generated criticism not just from the schools that remained under a cloud for months and even years, but also from students who often graduate before seeing any resolution of their complaints. As a lawyer for the Boston-based Victim Rights Law Center put it, although OCR’s determination to “look at everything from soup to nuts” was “a great thing” overall, it “utterly fails to provide remedies to individual victims.” She described OCR’s response to individual complainants as, “Thanks for the complaint, we’ll see you in four years while we do a compliance review.”

In June, OCR ended this novel practice, returning discretion to regional officials to determine the scope of their investigations and emphasizing the importance of expeditious resolution of complaints. But hundreds of investigations remain ongoing, and schools not yet on the hook look around and think (in the words of one Title IX officer with whom I spoke), “there but for the grace of God go I.”

The internal Title IX compliance offices produced by this process are ambitious as well as expensive. Since 2013, Swarthmore, a college with only 1,500 students, has appointed four new Title IX deputy coordinators and a Title IX Fellow, plus a “violence prevention educator and advocate” and sexual misconduct investigator in the college police department. By 2016, Harvard had 50 full-time and part-time Title IX coordinators, and Yale had 30. The University of North Carolina now has seven full-time Title IX compliance officers. This is a good example of how expansion of government regulation increases the number and influence of academic administrators—an institutional shift of great significance for higher education.

These offices do not limit themselves to responding to accusations of assault and providing support to survivors. They, too, are dedicated to “changing the culture.” For example, Harvard’s new sexual-assault office proclaims on its web site that “Rape culture is ubiquitous.” That is why colleges need to reform the way we “talk about sex.” Moreover, sexual violence is inseparable from gender inequality: “The less equity that exists between genders in a culture (men having more power than women and trans people), the more likely rape, sexual assault, and harassment are likely to occur.” Consequently, “addressing gender inequality requires reflection, action, and vision that is rooted in an anti-oppression, social justice framework.”

The extent to which laudable efforts to provide professional help to victims of sexual assault have been combined with ideological attacks on “masculinity” in the name of “social justice” is evident in Princeton’s 2017 description of a new position for an “Interpersonal Violence Clinician and Men’s Engagement Manager.” Only a third of this person’s time will be devoted to traditional counseling. The rest will involve “men’s programming initiatives geared toward enhancing awareness and challenging gender stereotypes.” In addition to the advanced degrees and clinical experience, applicants must have “expertise in” and commitment to “social justice issues.” In other words, addressing the problem of sexual assault requires us to go beyond dealing with individual cases to challenge “belief systems” about “gender stereotypes,” to expose the “privileges of male identity formation and the relationship with violence,” and to work toward “social justice.”

More Deliberation, Less Demagoguery

OCR has built this impressive edifice on the basis of a law that simply prohibits sex discrimination in educational institutions funded by the federal government. It has evaded standard rule-making procedures designed to collect evidence and encourage public participation; ignored the Supreme Court’s interpretation of Title IX; pressured schools to adopt disciplinary proceedings that deny due process to the accused; insisted upon a definition of sexual harassment so broad that it threatens free speech on campus; and created within colleges units dedicated to reeducating students on all matters sexual and on the dictates of “social justice.” To claim that any criticism of this heavy-handed regulation is designed to make colleges “safe for rapists” is to engage in a most reckless form of demagoguery.

All too often the leader of the current administration, too, has engaged in reckless demagoguery. He has shown contempt for judges and for the rule of law. He has acted precipitously and unilaterally, with little understanding of public policy or the likely consequences of his action.

Here is an opportunity for the secretary of education and OCR to do just the opposite. By using standard notice-and-comment rule making, by bringing the agency’s policy in line with the Supreme Court’s interpretation of Title IX, by getting a better handle on the extent of sexual assault in educational institutions and effective prevention measures, and above all, by focusing regulations on improving the educational opportunities that we provide students rather than upending the sexual mores of society at large, they can demonstrate that not everyone appointed by President Trump need sink to his level.

R. Shep Melnick is the Thomas P. O’Neill Jr. Professor of American Politics at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education (Brookings Institution Press, forthcoming).

This article appeared in the Winter 2018 issue of Education Next. Suggested citation format:

Melnick, R.S. (2018). Rethinking Federal Regulation of Sexual Harassment: The need for deliberation, not demagoguery, in the Age of Trump. Education Next, 18(1), 8-15.

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Is the Trump Education Department Really “Rolling Back” Civil Rights?

R. Shep Melnick — Wed, 21 Jun 2017 00:00:00 +0000

Partisan polarization and overheated rhetoric have become so intense that it is difficult these days to distinguish a policy mountain from a governmental molehill. Case in point: last week’s news stories about the Department of Education’s enforcement of civil rights laws.

On June 16, the left-leaning ProPublica published a leaked memo from the Department’s Office for Civil Rights (OCR) explaining that the agency would no longer automatically turn individual complaints about sexual harassment into year-long investigations of the practices of an entire university or school district. The title of ProPublica’s story? “Trump Administration Quietly Rolls Back Civil Rights Efforts Across Federal Government.”

The next day—not coincidentally—the U.S. Commission on Civil Rights announced that it would launch an extended investigation of the Trump administration’s civil rights enforcement practices. The new chair of the Commission, Catherine Lhamon, described OCR’s emerging enforcement strategy as “stunning to me and dangerous.” President Obama had appointed Lhaman to that position by shortly before he left office. Previously she was the head of OCR and the principal author of the controversial and novel enforcement policy now being revised by the Trump administration.

Is the Trump administration really undermining civil rights enforcement, or is this just another effort by the outgoing administration to score political points against its successor?

There are many reasons to be deeply skeptical of the Trump administration, especially on the issue of sexual misconduct. This is, after all, an administration led by a man who bragged about committing sexual assault. His Secretary of Education seems to know almost nothing about the civil rights laws enforced by her Department. The President has yet to nominate anyone to serve as Assistant Secretary for Civil Rights, preferring to appoint an “acting assistant secretary” in order to avoid the Senate confirmation process. This “acting” head has no government experience; her main qualification seems to have been launching a crude attack on Hillary Clinton during the campaign.

To understand what is going on here, it is useful to start with a few budget facts. The Commission on Civil Rights has described the administration’s proposed reductions in OCR’s budget as “untenable.” The President’s budget does include a small cut for OCR, from the current $108.5 million to $106.8 million. This will mean that its FY 2018 budget might be the smallest since—well, 2016. In FY 2014 OCR’s budget was just a little over $98 million. So it’s hard to see what all the fuss is about. With all the downward pressure on discretionary spending, OCR has fared pretty well.

OCR has argued that it needs more money and investigators because its caseload has grown rapidly. On the surface this would seem to be true. In 2010 the agency received about 7,000 complaints each year. By 2014 this had grown to almost 10,000 and by 2016, 16,700. But the 2014 figure includes 1,700 sex discrimination complaints filed by two individuals. The 2016 number includes a whopping 6,157 Title IX complaints filed by a single individual. Should the number of complaints filed by two or three enterprising private citizens be the standard for judging how much public money a regulatory agency receives?

The enforcement strategy question is more complicated, so some background is in order. The investigations most affected by OCR’s new policy are those involving allegations of sexual assault and other forms of sexual harassment. In 2011 and 2014 OCR issued extensive guidelines on how schools must respond to such allegations and on the practices they must institute to “to eliminate the hostile environment, prevent its recurrence, and address its effects.”

Accompanying these new rules was a novel enforcement strategy with two parts. First, instead of waiting until a case had been resolved before making the investigation public (its policy for decades), OCR now announced with great fanfare the initiation of all sexual harassment investigations. The purpose of this change was to emphasize the importance of the issue and to put intense pressure on colleges to comply with OCR’s demands.

Second, each sexual misconduct complaint filed by an individual would trigger a full-blown investigation of the entire institution. Catherine Lhamon explained to an Associated Press reporter that when the agency receives a complaint, “it’s better to look at a school’s policies, and other case files, to see if what happened to that student is an aberration.” She conceded that these reviews can take years to complete: “A review is onerous. I don’t love how much time it takes for my staff, and I don’t love how much time it takes for schools. But I do love ensuring safety for all students on campus.”

Onerous and time-consuming these investigations have indeed become. Since 2011 OCR has initiated 399 sexual assault investigations, but resolved only 62 of them. The average investigation lasts 1.7 years, the longest over six years.

Even those who applaud OCR’s aggressiveness on the issue have criticized it for letting the individual complainant fall through the cracks. A lawyer for the Boston-based Victim Rights Law Center praised OCR’s determination to “look at everything from soup to nuts,” but argued that its enforcement strategy “utterly fails to provide remedies to individual victims.” She described OCR’s response to individual complainants as “Thanks for the complaint, we’ll see you in four years while we do a compliance review.” The authors of a recent Yale Law Journal article agree: “While OCR has dramatically improved its efforts to reform structural Title IX compliance across universities . . . it has done relatively little to promote complainants’ immediate access to education.” OCR’s recent enforcement shift was aimed at least in part to address this problem.

OCR’s investigations place enormous stress on college administrators. In fact, they are designed to give schools powerful incentives to reach an agreement with OCR—or better still, pressure schools not yet the target of a complaint to follow every element of OCR’s lengthy guidance documents.

According to a Chronicle of Higher Education report, “Longtime leaders can’t recall another issue that so consumed colleges. . . . Just about every campus has a task force. Some presidents say they’ve spent half their time on the issue—and serious money, limiting their ability to add another mental-health counselor, for example, or hold down a tuition increase. Chancellors can rattle off the percentage of students and faculty member who have completed new training programs.” Student affairs administrators at some schools under investigation told a Chronicle reporter that they were “buckling under the pressure of trying to meet the government’s approval with their prevention and adjudication efforts.” Few investigations result in a finding of no violation—even if the only specific infractions involve deficient record-keeping. According to Peter Lake of Stetson University, one of the country’s leading experts on Title IX compliance, “They come into your closet and say, ‘Everything is in order, but we just went into your dresser and your socks aren’t matching.’”

About the only way to get out from under such investigations is to sign a lengthy and detailed compliance agreement that allows OCR to monitor school activities—and veto any policy changes the school might consider—for years to come.

Why did OCR deviate from its decades-long enforcement policy and routinely turn sexual harassment complaints into full-blown compliance reviews? In large part because it has strayed so far from the Supreme Court’s interpretation of Title IX, the federal law that serves as the foundation of OCR’s rules on sex discrimination. The Court has taken a much narrower reading of federal regulatory authority than has OCR. Consequently, administrators cannot rely on federal courts to enforce their commands.

The agency has never been willing to use the enforcement mechanism specified by Title IX, the termination of federal funding. That “nuclear option” is politically too risky. To put it bluntly, the lengthy, costly, and reputation-damaging federal investigation is the weapon OCR has used to bludgeon schools into complying with its legally questionable demands.

At the heart of the debate over Title IX enforcement strategies lies this fundamental question: Are the lengthy guidelines OCR has established for combating sexual harassment in education institutions legal and wise? Or has OCR gone well beyond its legal mandate to insist that schools adopt policies that threaten due process of law and freedom of speech?

Those who have harshly criticized OCR’s rules include many who would never dream of supporting Donald Trump. That includes the former director of the ACLU, the American Association of University Professors, a task force of the American College of Trial Lawyers, twenty-eight Harvard Law School professors, sixteen University of Pennsylvania law school professors, and many others.

In short, to criticize OCR’s current enforcement strategy and the Title IX policies announced by the Obama administration is not to attack civil rights. Controversial public policies should not be exempt from reexamination simply because their authors place the label “civil rights” upon them.

Given the close link between OCR’s enforcement strategy and its controversial regulations, it would be best for OCR to move now to an explicit re-examination of its 2011 and 2014 guidance on sexual harassment. The agency never followed the procedure laid out by the Administrative Procedure Act or Title IX itself when it announced these novel policies. Inverting the normal process, it announced these guidelines in unilateral “Dear Colleague Letters,” only later asking for comments. It also thumbed its nose at the Supreme Court’s reading of the statute it claimed to implement.

The Trump administration is often accused of acting impetuously, secretly, and without concern either for evidence or for the institutions of constitutional democracy. Unfortunately, over the past few months it has provided all too many examples of such behavior. By using well-established procedures to review the flawed policies of its predecessor, by showing respect for the rulings of the Supreme Court, and by speaking forthrightly about the connection between policy and enforcement, OCR could distance itself from some of the ugliest features of the Trump administration. Whether its leaders will have the inclination or the political ability to do so remains very much in doubt.

In the meantime it would be wise for everyone to tone down the rhetoric that portrays every policy initiative of the Obama administration’s OCR as an indispensable civil right. During its short tenure, the Trump administration has done many things that deserve our condemnation. OCR’s revised enforcement strategy is not one of them.

— R. Shep Melnick

R. Shep Melnick is Thomas P. O’Neill, Jr., Professor of American Politics at Boston College and author of the forthcoming book The Transformation of Title IX from Brookings Press.

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Equal Protection Bars Racial Favoritism

R. Shep Melnick — Tue, 20 Jun 2017 00:00:00 +0000

In his 30 years on the Supreme Court, Justice Antonin Scalia wrote surprisingly few opinions in education cases, and even when he did, he seldom mentioned education. Instead, he focused on issues such as standing, techniques of statutory interpretation, the meaning of the First Amendment, and the importance of judicial restraint. Scalia believed his job in education cases was to read and apply the text of the law, and not allow his personal views on education to come in through the backdoor via free-ranging interpretations of vague statutory and constitutional provisions.

This set him apart from his more-liberal colleagues, who viewed Brown v. Board of Education (1954) not as a prohibition on the use of racial classifications in education, but rather as a mandate for judges to do whatever they could to promote “equal educational opportunity.” Judges who embrace this understanding of Brown and equal protection feel compelled to listen to the “experts” on educational inequality and to use their judicial authority to remedy injustices. Scalia, in contrast, favored a colorblind interpretation of the equal protection clause, that, in his words, “proscribes government discrimination on the basis of race, and state-provided education is no exception.”

Political Jurisprudence?

In his companion essay for this forum, James Ryan maintains that Scalia’s defense of judicial deference is fraudulent. There are many who share this view. Behind Scalia’s “originalism” and “textualism,” they claim, lies a conservative political point of view. In two key respects these critics are right. Scalia’s interpretive method is political in that it rests on an understanding of the proper operation of the political institutions of a liberal democracy. And it is conservative in the sense that he believed our public institutions (including our education system) are basically healthy, and should not be subjected to frequent rounds of reform by unelected judges and self-appointed experts. The key question here is the soundness of these political judgments.

It is fair to say that Scalia was relatively content with the way we have traditionally organized education in this country—or at least less critical of it than his more-liberal brethren. Until relatively recently, most education decisions and funding have been within the purview of local government. Local control of public schools combined with the availability of private schools promotes both choice and experimentation. The major flaw in this system—de jure racial segregation—has been ended. Critics rightfully note that this decentralization allows many forms of inequality to persist. But it is difficult to eliminate these inequalities without producing a stultifying uniformity and reducing voters’ control over education.

There are undoubtedly many ways our education system can be improved. Scalia saw such efforts not as the job of judges following the abstract theories of academic experts but of elected officials and the administrators appointed by them. Judges, he believed, should focus on establishing a few simple rules about what is legally permissible and what is forbidden. The rule of law, Scalia emphasized, is the law of rules. Judges should therefore look for rules that curtail the worst abuses rather than try to micromanage public schools.

Critics of Scalia’s originalism claim that this approach to constitutional interpretation exaggerates the extent to which we can understand the intentions of those who wrote the original Constitution or the Fourteenth Amendment. Scalia recognized that “it is often exceedingly difficult to plumb the original understanding of an ancient text” and to apply that understanding to contemporary issues. But for him that difficulty provided yet another argument for judicial restraint.

The primary purpose of originalism, Scalia argued, is to dissuade judges from reading their personal understandings of what is fair, good, and just into the vague phrases of the Constitution. When the Constitution is clear—for example, when it says that a state can deprive a person of “life” so long as it provides “due process,” or when it gives those accused of crimes the right to “confront” their accusers—judges need to follow those commands. Where the Constitution is ambiguous, “this Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.”

Scalia did not maintain, though, that the court should simply overturn decisions that have become embedded in our law and practices, however mistaken those decisions may have been. He usually adhered to the doctrine of stare decisis—respect for precedent. His approach looked not just to “text,” but to “tradition” as well. Regarding race and the equal protection clause, Scalia’s combination of text and tradition culminates in a simple rule: no governmental use of racial classifications except in extraordinary circumstances.

Brown, Green, and Colorblindness

For an originalist, Brown presents a serious problem. On the one hand, it has become a fundamental element of our legal and political culture. The authority of its central argument, that “separate is inherently unequal,” is now firmly established. On the other hand, it is far from clear that the original supporters of the Fourteenth Amendment believed that it prohibited school segregation. To advocates of a “living Constitution,” this lack of clarity is liberating: it frees them to do anything they think appropriate for promoting equal educational opportunity. For Scalia, in contrast, the challenge was to provide a solid constitutional foundation for Brown without empowering judges to wield it as a mandate to remake our schools.

Scalia claimed that the Fourteenth Amendment does provide support for school desegregation. In Rutan v. Republican Party (1990), he wrote that “the Fourteenth Amendment’s requirement of ‘equal protection of the laws,’ combined with the Thirteenth Amendment’s abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid.” Scalia focused on the general understanding of the terms “equal protection of the laws,” “due process of law,” and “privileges and immunities” in the late 1860s and thereafter. Although he could not prove there was broad support for prohibiting de jure segregation in 1868, he did show that there was a clear and vibrant tradition in case law that viewed the use of racial classifications by government as pernicious, particularly because such a practice is so susceptible to the tyranny of majority faction. This position was presented most forcefully in Justice John Marshall Harlan’s well-known dissent in Plessy v. Ferguson (1896). And Congress, through its voting patterns during the 1860s and 1870s, expressed a similar opposition to racial classifications, as the constitutional scholar Michael McConnell has demonstrated.

That “colorblind” interpretation of the Fourteenth Amendment was endorsed by the NAACP lawyers who brought the long string of cases culminating in Brown. “That the Constitution is color blind is our dedicated belief,” they wrote in their 1953 brief. And in his arguments before the court, chief counsel Thurgood Marshall maintained that the Fourteenth Amendment denies states the authority “to make any racial classification in any government field.”

This was also the understanding of the presidents who proposed the Civil Rights Act of 1964 and the members of Congress who voted for it. That seminal law explicitly states that “desegregation” means the assignment of students to schools “without regard to their race, color, religion, or national origin,” and shall not be interpreted to mean “the assignment of students to public schools in order to overcome racial imbalance.” As President John F. Kennedy put it a few months before his death, “I think it would be a mistake to begin to assign quotas on the basis of religion, or race, or color, or nationality. I think we’d get into a good deal of trouble.”

In an important sense, Ryan is right to claim that Scalia’s embrace of Harlan’s colorblind interpretation of the equal protection clause is “results-oriented.” Scalia was above all concerned with the political consequences of allowing public officials to use racial classifications. Indeed, it would be hard to avoid addressing a question of this magnitude without thinking about the long-term consequences of competing interpretations. Here, Scalia quotes from the constitutional scholar Alexander Bickel, who argued that a “racial quota derogates the human dignity and individuality of all to whom it is applied; it is invidious in principle as well as in practice.” A quota, Bickel charged, is a “divider of society” and a “creator of castes” that “can easily be turned against those it purports to help.” Given the dangers inherent in the use of racial classifications, Scalia maintained, we should take this tool out of the hands of public officials, even if they claim to use it for “benign” purposes.

In his opinion for the court in Parents Involved v. Seattle School District (2007), Chief Justice John Roberts illustrated Bickel’s point. Roberts noted that according to the rules the Seattle School Board had established to promote “diversity” in its schools, “a school that is 50 percent white and 50 percent Asian-American . . . would qualify as diverse,” but “a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white . . . under Seattle’s definition would be racially concentrated.” Especially at exam schools, boosting admissions for some groups comes at the expense of other groups—usually Asian Americans, who have also faced harsh discrimination over the course of American history. In Kansas City in the late 1980s and early ’90s, African American parents were justifiably irate when the federal court’s integration plan denied their children access to the magnet schools of their choice because so many seats had been set aside for white children—who did not show up in sufficient numbers to fill them. This shuffling of students on the basis of race reinforces racial thinking without providing countervailing benefits. Assertions of “benign” intent hardly ensure that public policies will not have perverse consequences.

Until the early 1970s, no one other than segregationists challenged the colorblind interpretation of the equal protection clause and Brown. This changed in a flurry of Supreme Court decisions on school desegregation, most importantly, Green v. New Kent County (1968) and Swann v. Charlotte-Mecklenburg Board of Education (1971). Justice William Brennan’s opinion for a unanimous court in Green set the stage for large-scale busing. It required school districts that had previously maintained a “dual” school system to take all steps necessary to convert to a “unitary” school system, one in which no schools are “racially identifiable,” because the enrollment of each school reflects the racial balance of the school district as a whole. District court judges took this to mean that desegregation orders must be revised on a regular basis to ensure racial balance. This practice continued for decades.

In two 1992 cases, Freeman v. Pitts and U.S. v. Fordice, Scalia addressed the question of how long such efforts at racial balancing must last. His principal purpose was to distinguish the extraordinary measures necessary for dismantling Jim Crow in the 1960s and 1970s from the “ordinary principles of our law, of our democratic heritage, and of our educational tradition.” He maintained that “plaintiffs alleging equal protection violations must prove intent and causation and not merely the existence of racial disparity,” and that “public schooling, even in the South, should be controlled by locally elected authorities acting in conjunction with parents, and that it is desirable to permit pupils to attend schools nearest their homes.” For Scalia, the proper response to a mistaken or outmoded precedent was not necessarily to overturn it but to stop expanding it, narrow it whenever possible, and thus “revert to the ordinary principles of our law.”

Ryan and other defenders of “benign” racial sorting, in contrast, insist that the use of remedies originally available only to judges charged with dismantling an entrenched racial caste system in the South should also be available to public officials presiding over school systems that have not violated the Fourteenth Amendment. The fullest presentation of this point of view is Justice Stephen Breyer’s impassioned dissent in Parents Involved. It is notable that Breyer never quoted from Brown, but only referred to its “hope and promise.” The main support for his position came from academic studies and Chief Justice Warren Burger’s opinion in Swann. Ryan, too, places much weight on the Swann opinion. That is a strange choice, given that it is among the Supreme Court’s most poorly constructed and internally contradictory opinions. Swann was the product of a complicated effort to extract a unanimous ruling from a deeply divided court.

In the end, the argument of Breyer and Ryan boils down to the claim that by using potentially dangerous racial classifications we can produce racially integrated schools that improve the educational opportunity of minority students. How do we know this? The experts tell us so, or, as Justice Clarence Thomas pointed out, not all the experts, just those Breyer chose to cite. Breyer “unquestioningly” relied upon “certain social science research to support propositions that are hotly disputed among social scientists.”

Can Brown be reconciled with a full-throated, doctrinaire understanding of originalism? Probably not. For that reason, no one endorsing that form of originalism has sat on the Supreme Court since 1954, and none are likely to be appointed in the future. But Antonin Scalia considered himself a “faint-hearted originalist” who saw Brown as part of a long and noble tradition that had been explicitly endorsed by Congress and the president in 1964 and that had since become deeply embedded in our political culture. At its heart lies a simple rule—no use of racial classifications except to remedy specific constitutional violations—that does as much to constrain as to empower judges. This rule might not lead us to the best possible education outcomes, but it prevents the worst type of abuses. Having unwisely expanded exceptions to the colorblind rule, Scalia argued, the court should now return to the original understanding of Brown.

This essay is abridged from a chapter in the forthcoming volume Scalia’s Constitution: Essays on Law and Education, edited by Paul E. Peterson and Michael W. McConnell, Palgrave Macmillan, 2018.

This is part of a forum on Antonin Scalia’s record on race and education. For an alternate take, see “Choosing Judicial Activism over Originalism” by James E. Ryan.

This article appeared in the Fall 2017 issue of Education Next. Suggested citation format:

Melnick, R.S., and Ryan, J.E. (2017). Is the Constitution Colorblind? Debating Antonin Scalia’s record on race and education. Education Next, 17(4), 50-57.

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Is the Constitution Colorblind?

R. Shep Melnick — Tue, 20 Jun 2017 00:00:00 +0000

Brown v. Board of Education, the landmark 1954 decision barring school segregation, is a cornerstone of the American legal tradition. After more than a half century, however, its precise meaning remains contested. While conservatives view Brown as prohibiting the government from using racial classifications except in extraordinary circumstances, liberals believe the ruling leaves ample room for elected officials to take race into account when seeking to promote equal opportunity. Which interpretation prevails will continue to determine the extent to which public colleges can use race as a factor in admissions decisions, as well as the scope of school districts’ efforts to create more integrated schools and classrooms.

In this issue’s forum, legal scholars Shep Melnick and James Ryan examine this debate through the lens of the education rulings of the late Supreme Court justice Antonin Scalia. Melnick argues that Scalia’s conservative reading of Brown has solid roots in the text of the U.S. Constitution and usefully prohibits judges from imposing their policy preferences on the nation’s schools. Ryan, meanwhile, contends that Scalia’s rulings reveal the extent to which the court’s most famous “originalist” was willing to depart from his principles in order to strike down policies he found objectionable. At stake in their debate is nothing less than this question: Is our Constitution colorblind?

Equal Protection Bars Racial Favoritism
by R. Shep Melnick

Choosing Judicial Activism over Originalism
by James E. Ryan

This article appeared in the Fall 2017 issue of Education Next. Suggested citation format:

Melnick, R.S., and Ryan, J.E. (2017). Is the Constitution Colorblind? Debating Antonin Scalia’s record on race and education. Education Next, 17(4), 50-57.

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How Civil Rights Enforcement Got Swept Into the Culture Wars, and What a New Administration Can Do About It

R. Shep Melnick — Mon, 06 Mar 2017 00:00:00 +0000

It was bound to happen. During Betsy DeVos’ contentious confirmation hearings, she was asked few questions about her evaluation of the Obama administration’s controversial interpretation of the law that bans sex discrimination in schools to include gender identity.

Shortly thereafter, the issue hit the headlines when the Trump administration moved to reverse the Obama administration’s guidelines on transgender students’ access to sex-segregated facilities. Reports swirled that DeVos had objected to the move, which had been favored by Attorney General Jeff Sessions. The administration denied the reports.

This was just the opening round of what is likely to be a long series of acrimonious debates over policy at the Department of Education’s Office of Civil Rights, on topics including sexual harassment, affirmative action, instruction of English language learners and school discipline – even on who might head the agency.

During the Obama administration, this office charged full speed ahead into the nation’s culture wars by imposing on every educational institution in the country novel and detailed mandates based on very broad interpretations of Title VI of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of race and national origin) and Title IX of the Education Amendments of 1972 (which prohibits discrimination on the basis of sex).

This campaign drew a sharp reply from the Republican Party. Its 2016 platform devoted a separate section to Title IX, saying the civil rights office’s “distortion of Title IX to micromanage the way colleges and universities deal with allegations of [sexual] abuse contravenes our country’s legal traditions and must be halted.”

With about 550 employees, the Office of Civil Rights is a small agency with a very broad responsibility. It must ensure that all educational institutions that receive federal funding — which means 14,000 public school districts and more than 7,000 institutions of higher learning — comply with Title IV, Title IX, section 504 of the Rehabilitation Act of 1974 and Title II of the Americans with Disabilities Act, and the Age Discrimination Act of 1976. Since none of these statutes defines what constitutes discrimination, the agency’s power is extensive.

This is hardly the first time that civil rights office has found itself at the center of political controversy. In the 1960s it played a crucial role in dismantling de jure school segregation in the South. In the 1970s and again in the 1990s it aggressively promoted bilingual education, encountering stiff opposition both times. For many years it has interpreted Title IX to require colleges to increase the number of female varsity athletes until their numbers reflect the proportion of female students on campus.

Yet these previous bouts of activism pale in comparison with the initiatives of the Obama civil rights office. It issued far more “Dear Colleague” letters — the form of unilateral regulation favored by the agency — than ever before, and has been aggressive in launching well-publicized investigations of colleges and universities. Since 2010, the civil rights office has issued detailed directives on eliminating racial disparities in school discipline; the allocation of school resources among racial groups; schools’ responsibility for preventing bullying; the use of race-based assignments to achieve diversity; achieving gender equity in intercollegiate and interscholastic sports, and support for pregnant and parenting students.

The two most controversial initiatives have come under Title IX: The office’s seven-year effort to combat what it described as an “epidemic” of sexual violence on campus, and its 2016 directive on the right of transgender students to choose restrooms, locker rooms, overnight accommodations and sports teams on the basis of their subjective sense of “gender identity” rather than their biological sex.

Given the Trump administration’s frequently repeated promises to shake up Washington, it is hard to see how it could ignore this office’s web of new regulations. Because the enforcement of the transgender guidelines had already been halted by a federal court, it was the easiest target.

If Secretary DeVos and Attorney General Sessions did argue over the transgender guidelines, it shows there is no consensus within the Administration on how this reevaluation should proceed.

Some have suggested that Office of Civil Rights be taken out of the Department of Education and placed in the Department of Justice. This would not only require statutory change, but would seem to suggest that the civil rights offices of all other departments and agencies also be transferred to Justice, creating one super-office with thousands of employees.

Given the fact that Education’s civil rights office already works closely with Justice — the “Dear Colleague” letter on transgender students was issued jointly by Education and Justice — it is hard to see what would be accomplished by such a massive and disruptive reorganization.

No matter where the civil rights office is located, its twelve regional offices, which employ most of the agency’s personnel, will continue to perform their main task, which is investigating the roughly 10,000 complaints filed with the agency each year. Over half these complaints involve the treatment of children with disabilities; often these involve disagreements over the details of the individualized education plans mandated by federal law. Most of the remainder involve claims of racial discrimination, complaints about the quality of instruction provided English language learners, claims that schools have not provided female students with equal athletic opportunity, and charges that schools have not dealt adequately with sexual violence and other forms of sexual harassment.

No matter what one thinks of the agency’s recent “Dear Colleague letters,” it is hard to argue that the agency should stop investigating these complaints and seeking redress for those that have merit.

So the big questions for the yet-to-be-named assistant secretary for civil rights are these: Which “Dear Colleague”” letters should be targeted for revision? What procedures should the civil rights office use to do so? How radical should these changes be?

In one way, the Obama administration has paved the way for major revisions in its guidelines. Rather than using the standard notice-and-comment rulemaking procedures laid out by the Administrative Procedures Act (APA) and then submitting these regulations to the president for his signature (as required by Titles VI and IX), it has relied entirely on unilaterally announced “Dear Colleague” letters. Their use rests on the transparent fiction that these letters do not “add requirements to applicable law,” but merely provide “information and examples” to schools on “complying with their legal obligations.”

By ignoring standard rulemaking procedures, the civil rights office avoids subjecting its regulations to public comment and review by other government agencies. Striking a pose similar to the Queen of Hearts in Alice in Wonderland, the Office of Civil Rights welcomes public comments — but only after it has established its policies.

While this makes establishing new rules quicker and easier, it also means it is quicker and easier to rescind those rules. The Supreme Court has held that when an agency uses APA rulemaking to establish a regulation, it can only revise those rules by going through the same lengthy, politically treacherous process. But a “Dear Colleague” letter announced unilaterally can be undone unilaterally.

Turnabout may sometimes be fair play, but in these circumstances it would produce bad policy and even worse politics. That is particularly true for the policies most in need of revision, those on sexual assault and other forms of sexual harassment. These have drawn criticism from a wide array of people and groups who generally support civil rights regulation. These rules threaten both due process of law and freedom of speech. They might have the unintended effect of discouraging the victims of assault from going to the police, who, unlike college administrators, can initiate a process that sends criminals to prison.

The civil rights office’s policies go well beyond anything required by the Supreme Court under Title IX. They also require colleges to create large and expensive “sex bureaucracies” charged with providing ill-defined “training” to virtually everyone on campus.

As troubling as these sexual harassment rules are, it would be hard to find a worse person to challenge them than the current president of the United States. He has bragged about committing actions that clearly constitute sexual assault. He has shown little respect for the rule of law and no understanding of the separation of powers. He seems addicted to government by decree. Facts are what he says they are. All the rest is only “fake news.” What a terrible education for our children!

The incoming leaders of the civil rights office will have a chance to improve its regulations, but only if they willing to be everything our President is not. Rather than act precipitously and unilaterally, they should demonstrate their commitment to the rule of law and public participation by following APA’s notice-and-comment rulemaking procedures. They should collect reliable information on such matters as the prevalence of sexual assault on campus and the effectiveness of proposed remedies. They should invite debate rather than shove disagreements under the rug, as the civil rights office has so often done in the past. They should show respect for Supreme Court interpretations of civil rights law, rather than devise clever end-runs around them.

In the short run this will provoke intense controversy. In the long run, though, it will subtly shift the culture of the civil rights office to make it more knowledgeable, more analytical, more respectful of local differences and less impressed by its own self-righteousness.

Is this too much to expect of the Trump administration? Given its disgraceful performance so far, probably so. But much depends on who leads the office and how much support that person gets from Secretary DeVos. They should keep in mind Mark Twain’s aphorism: “Always do right. This will gratify some people and astonish the rest.” Please astonish us.

—R. Shep Melnick

R. Shep Melnick is the Thomas P. O’Neill, Jr. Professor of American Politics at Boston College.

This post originally appeared on The Hechinger Report.

The post How Civil Rights Enforcement Got Swept Into the Culture Wars, and What a New Administration Can Do About It appeared first on Education Next.