What Is the Future of the Office for Civil Rights?

Experts with varying opinions weigh in on what the arm of the Department of Education could look like under Donald Trump and Betsy DeVos.

The front of a school bus fills most of the frame, as children and parents with backpacks mill about around the front of the bus. The stop sign is out on the side of the bus.
Mike Stone / Reuters

In the days after the presidential election, news outlets and thousands of educators reported increases in harassment, bullying, and intimidation of students based on race, ethnicity, religion, and gender identity. While schools and colleges are on the frontline in confronting these incidents, one mechanism that for more than 35 years has served to curtail such actions is the Office for Civil Rights (OCR) within the U.S. Department of Education.

The federal agency’s mission is “to ensure equal access to education,” and it’s charged with enforcing laws that prohibit discrimination against marginalized populations—including students of color, religious and gender minorities, and students with disabilities. In recent years OCR has issued guidance to states and local school districts on their legal obligation to meet the educational needs of transgender students, students with ADHD, and youth in juvenile justice facilities; the civil-rights unit also tracks how well public schools and districts nationwide measure up on equity in learning opportunities.

As one president wraps up his term and another takes the reigns, some have speculated on what a Donald Trump administration and Education Secretary-nominee Betsy DeVos foretell for the civil-rights branch given indications that they plan to downsize the department. With many unknowns still in play, The Atlantic invited voices in education representing divergent viewpoints to offer their outlook and prognosis on the Education Department’s civil-rights arm. The responses, via email, have been edited for clarity and length.

Melinda D. Anderson: It would seem that the fundamental work of the current OCR—whether focused on sexual harassment and violence, racial bullying, transgender discrimination, or other efforts—is providing equitable learning environments. Could this work look different in the new administration and a DeVos-led Department of Education? If so, how?

Thomas J. Gentzel, the executive director of the National School Boards Association

[Though] the fundamental work of OCR is enforcing civil-rights laws in education, it is the job of school districts to provide equitable learning environments and, ultimately, to balance all of the competing interests so that all students have safe environments in which to learn. NSBA has been concerned about executive overreach through the issuance of guidance [and] will continue to urge the incoming administration to exercise restraint in such an approach to achieving its educational objectives.

Dan Losen, the director of the Center for Civil Rights Remedies at UCLA’s Civil Rights Project

A major question is to what extent a Trump [administration] will seek to unleash the forces of the far right and yield OCR [and the Department of Justice] as hammers for its agenda, versus dramatically diminishing the federal role in education by substantially cutting OCR's budget and reducing OCR's footprint. The latter entails allowing those [far right] forces to go unchecked at the state and local levels [where] they clearly have power and influence … [it’s] like the difference between aggressive and passive aggressive, but [both] mean a big difference in the lives of children. I predict a lot more bullying, much less sensitivity, and blatant bigotry being tolerated [at schools and campuses.]

Robert Shibley, the executive director of the Foundation for Individual Rights in Education, an advocacy group focused on free speech in academia, and the author of Twisting Title IX

The fundamental work of OCR is to enforce the anti-discrimination laws over which it has been given jurisdiction by Congress, as well as duly enacted regulations based on those laws. I suspect that most of OCR’s work will remain largely unchanged, but an agency’s interpretation of laws and regulations is bound to change somewhat with a change of political control. Consensus won’t be possible on every controversial issue, but OCR’s efforts to fight discrimination are severely hobbled from the start if stakeholders don’t even have the sense that they have been given a fair hearing, as they weren’t with the April 4, 2011 [letter to colleges, universities, and schools] mandating that institutions use the preponderance of the evidence standard in sexual-misconduct hearings.

Harper Jean Tobin, the director of policy for the Washington, D.C.-based National Center for Transgender Equality

OCR's mission will not change. How effective it is in carrying out that mission will depend in large part on the resources provided by Congress and the leadership provided by the president and his appointees. Unfortunately, the president-elect's nominee for secretary of education and other members of his leadership team have shown an indifference or hostility to civil-rights enforcement in general, and hostility to certain communities in particular, including LGBT communities.

Anderson: What do you predict as the biggest change—either in approach or execution—as the Department of Education’s civil-rights arm transitions from the Obama era?

Gentzel: Not much is known about the incoming administration’s agenda for education … [however,] the nation’s school boards will advocate for equity and excellence in public education, as well as oppose privatization schemes that drain public dollars from our public schools.

Losen: Assuming DeVos and Senator Jeff Sessions [for attorney general] are confirmed, the biggest change will be that a Trump administration will ignore blatant civil-rights violations … seek changes that will add to segregated schools, and allow bullying of discrete and insular minority groups of children. From a civil-rights perspective, we can hope that what looks like a tidal wave peters out before it hits land, but we must prepare for the [impact] … This will be much, much worse than the prior Republican administrations who at least gave lip service to basic civil-rights issues. We will see a true crisis in U.S. civil rights and not just in education.

Shibley: I don’t have any special knowledge of how OCR’s policies might change [but] I hope and recommend that the new OCR leadership withdraw the preponderance mandate, replace its unconstitutionally broad definition of sexual harassment with one that is in accord with Supreme Court case law, and recommit itself to going through proper notice and comment rulemaking procedures so that the interests of all concerned parties are actually taken into account.

Tobin: That depends greatly on the direction taken by the Secretary of Education and other appointees, funding from Congress, and rulings from the courts. There could be both a tremendous slow-down in civil-rights work in general and an abandonment of students' civil rights in certain areas, or even reversing course and advocating against students' civil rights in certain areas.

Anderson: What is the overriding message the federal government should be sending to states, school districts, and schools regarding civil rights in educational programs and activities?

Gentzel: The federal government should carry out its obligations to enforce federal civil rights in schools, and look to states and local school boards as partners in determining local solutions to address the [ultimate] needs of students.

Losen: That enforcing civil rights is not a zero-sum game, but that we are all better off when our system of public education promotes equity in opportunity and justice for all. If the president-elect applied to be a school superintendent, based on his words and his history of actions—including refusing to rent apartments to black tenants, making racist statements about a sitting judge, operating a fraudulent school, and boasting of sexual assault—no school board in America would hire him.

Shibley: OCR’s overriding message should be that unlawful discrimination will not be permitted in programs over which it has jurisdiction; that OCR will continually work to ensure that it provides clear, legally sound guidance on how to obey those laws without unduly violating institutional freedoms; and that institutions reasonably suspected of violating federal law should expect an uncompromisingly thorough, fair, and impartial investigation.

Tobin: The federal government should provide educators with meaningful guidance on how to comply with the law in areas where educators have a lot of questions. It should reflect the best practices in education so that educators around the country can learn from them. It should be urging schools to do right by their students—to protect their safety, their dignity, and their ability to fully participate in school—and showing them how. It should stand consistently for the principle that every student matters and is equal in dignity, [with an equal] chance to learn. OCR has a very strong record in recent years of doing just that.