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Betsy DeVosK-12

Trump administration narrows civil rights investigations

 (Erik Lesser / European Pressphoto Agency)
(Erik Lesser / European Pressphoto Agency)

The U.S. Department of Education is telling civil rights investigators that they can limit the scope of their work, according to an internal memo uncovered by ProPublica. 

The department also is circulating an internal memo that applies similar standards to cases involving transgender students — and encourages case officers to assess each on its own. 

The memo regarding transgender students lists specific instances where officers could have "subject matter jurisdiction," such as failure to use a student's preferred pronoun or a school or district's failure to fix an environment that is hostile toward transgender students. Investigations into  transgender students  being denied the right to use the bathrooms of their choice is not on that list — and the memo states that based on jurisdiction, some complaints might go forward while others, involving bathrooms, might be dismissed.

During the Obama administration, the department's Office for Civil Rights named colleges that faced scrutiny for mishandling sexual assault; outlined protections for transgender students (which recently have been revoked) and identified patterns of discrimination in school districts and universities.

Behind the scenes, the office created expansive guidelines for civil rights investigations, stating that certain types of complaints could automatically trigger broader investigations that looked into more than just the particular instance of discrimination highlighted in a complaint. 

"It was something I created after resolutions that were insufficiently comprehensive, and realizing we needed to be more thorough," said Catherine Lhamon, who led the office under President Obama.

The guidelines helped staffers uncover undetected patterns of discrimination, Lhamon said. For example, she said her office responded to two students who complained that Michigan State University hadn't properly responded to sexual assault allegations. She said the office looked more thoroughly into the school's records and found that Michigan State knew that a counselor had been sexually harassing students who came to complain about harassment — and did nothing about it.

The Education Department's reported new guidelines state that officers should look into broader patterns of noncompliance only when a complaint explicitly mentions that such broader patterns are possible.

The memo by Candice Jackson, the department's acting assistant secretary for civil rights, instructed staffers to end the practice of automatically designating certain types of complaints as "sensitive" or meriting more resources than others.

Lhamon said she created that designation for cases that touched on unsettled law, in an effort to standardize the responses to complaints in different parts of the country. 

The broader memo also puts an end to the Obama administration guideline recommending that investigators look at school or district records going back three years to determine if there has been a pattern of civil rights violations. The memo states that investigators now can decide for themselves the scope of information they need.

The memo states that regional officers will be subject to less federal oversight. 

DeVos' press secretary, Elizabeth Hill said the rules are meant to speed up the resolution of complaints.

"These internal enforcement instructions seek to clear out the backlog while giving every complaint the individualized and thorough consideration it deserves," she said in an email. "There is no longer an artificial requirement to collect several years of data when many complaints can be adequately addressed much more efficiently and quickly." 

The Office for Civil Rights has had a notoriously high backlog of open cases, and some institutions under investigation have found the process cumbersome.

But critics say the new policies weaken the protections of the people who turn to the office for relief.

"President Trump and his Administration can claim to oppose discrimination all they want, but actions speak louder than words," Sen. Patty Murray (D-Wash.) said in a statement. "Everything they are doing is making it clear that they want to defang and weaken the federal government’s tools to protect the civil rights and safety of people across the country."

Lhamon called the new guidelines her "worst nightmare." The drive to reduce caseloads and close cases quickly, she said, leads to an "assembly-line justice that does not open its eyes to the kinds of harms that OCR staff know exists in schools."

Many have been waiting to see what DeVos' approach to civil rights laws would be. In hearings, she stumbled over questions about sexual assault on college campuses. In another case, when asked if it was a problem that different groups of students faced different rates of discipline in public schools, she responded by saying that students are unique and deserve individualized attention.

In recent congressional budget hearings, DeVos said she is "invested in fully funding OCR." But Trump's budget proposal would cut just under $2 million from that office. Sources said Jackson has told her staffers that they should be prepared to "do less with less."


UPDATE 9:32 a.m.: This story has been updated to include the memo on transgender students. An earlier version stated that the memo reportedly discouraged field officers from looking into complaints involving bathrooms. This post was originally published at 3:00 a.m.

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