Originally published in The Intercept on November 10, 2017.
The Department of Education has become a civil rights nightmare. During her Senate confirmation hearing, Education Secretary Betsy DeVos admitted she didn’t know that the Individuals with Disabilities Education Act was federal law and suggested perhaps states should decide how to educate students with disabilities. A month later, the Trump administration rescinded protections that allowed transgender students to use whichever bathroom they felt most comfortable in; while DeVos reportedly objected at first, she ultimately green-lit the move. By June, the Education Department had announced it would be scaling back on civil rights investigations and proposed cutting more than 40 positions from its Office for Civil Rights.
Since then, the Education Department has decided to postpone protections for student loan borrowers and withdraw Obama-era protections for survivors of campus sexual assault. When a reporter explicitly asked DeVos if she would support increasing federal funding for IDEA, she wouldn’t say yes.
All this and more has prompted the start of a new coalition – the Education Civil Rights Alliance – to pool time, skills, and resources to defend students’ civil rights. It launched last week, and members say they’re aiming to fill a void the Trump administration has helped create.
ECRA is comprised of national legal and education groups, including the Lawyers’ Committee for Civil Rights Under Law, the Leadership Conference on Civil and Human Rights, the National Disability Rights Network, the American Federation of Teachers, the National Education Association, and the American Civil Liberties Union.
ECRA members emphasize they have never seen an Education Department disregard civil rights in this way. Speaking on a panel last week at the National Press Club, NEA President Lily Eskelsen García said even when her union has had disagreements with Republican and Democratic administrations, they’ve “always been able to count on the Education Department’s Civil Rights Office.”
These concerns were elevated further last month when the Education Department’s Office of Special Education and Rehabilitative Services sent out a newsletter announcing it had eliminated 72 special education guidance documents related to IDEA enforcement. The department gave no explanation beyond saying the documents were “outdated, unnecessary or ineffective.”
Advocates felt confused and blindsided. After further investigation, they discovered the Education Department had quietly scrapped the documents over two weeks earlier. Parents of students with disabilities took to social media in protest – the hashtag #ThisIsMyChild became their rallying cry.
Several days later, the Education Department released a revised list of the rescinded documents, including brief explanations for why each one was cut. Some were scrapped because of updated versions also on the books, others because they had been applicable to programs that no longer exist. A spokesperson for the department stressed that “there are absolutely no policy implications” to their actions, and that students with disabilities would not be affected.
But parents and advocates for students with disabilities are not convinced.
Amy Woolard, an attorney and policy coordinator for the Legal Aid Justice Center in Virginia, told The Intercept that for families and students with disabilities, advocating for rights under IDEA means “near-constant vigilance” throughout a student’s school career.
“Guidance may not have the force of law, but it’s certainly a critical advocacy tool and helps states and families steer a very large ship in a consistently choppy sea,” said Woolard. “To revoke dozens of guidance documents so quickly and without much notice — even if outdated or redundant, as the department claims — is going to create a great deal of uncertainty and concern, both for states and for a community that has only had the protections of IDEA itself for a few decades.”
In an interview with The Intercept, Liz King, education policy director for the Leadership Conference on Civil and Human Rights, said, “We do not believe that the decision to rescind the guidance was in response to confusion in the field.”
The Education Department did not return multiple requests for comment on whether it acted in response to complaints or requests from the public.
Denise Marshall, executive director of the Council of Parent Attorneys and Advocates, a national group that defends the legal and civil rights of students with disabilities, told The Intercept that while her organization’s initial analysis indicates students will not be impacted by the department’s rescinded documents, it is disappointed by the way the Education Department made its announcement, which led to real chaos for many people.
“We know this is just the first step in the process, yet we continue to lack any information from the department on next steps, so it’s premature to know what the full impact will be or if substantive feedback provided by stakeholders will be considered,” said Marshall. “Suffice it to say, we remain very concerned.”
Some national Democratic leaders spoke out against the department’s move.
“There isn’t a basic protection for students that Secretary DeVos hasn’t tried to undermine, and I fear this issue will be no different,” said Sen. Bob Casey, D-Penn., in a statement to The Intercept. “[She] is turning the Department of Education into some far-right experiment that does the bidding of special interests in Washington.”
Kamala Harris, a senator from California and potential 2020 presidential candidate, took to Twitter to blast the Education Department’s actions.
Going forward, the new Education Civil Rights Alliance says it will focus on protecting students – especially students with disabilities, students dealing with sexual assault, and transgender, immigrant, and Muslim students. The alliance says it is hearing lots of anecdotal reports about increases in school bullying and harassment and wants to help push for better data collection on these trends.
“What we’re hoping is by putting all this power together, we’re going to make sure that we have the biggest bang for the buck,” said Miriam Rollin, ECRA director.
Rollin told the Intercept that the new coalition has not yet talked to the Education Department, but “they’re hopefully on notice now.” The Education Department did not return multiple requests for comment on the ECRA or its own commitment to upholding civil rights law.
The Obama administration regularly consulted with the Leadership Conference on Civil and Human Rights, said King, the group’s education policy director, but Trump’s Education Department has rarely ever contacted them for feedback. “Their work has not been sufficiently transparent, it has not been guided by a commitment to protecting students from discrimination, and it has been reckless and irresponsible,” she said.
In October, the White House announced its nomination of Kenneth L. Marcus to lead the Education Department’s Office for Civil Rights, replacing Candice Jackson, who has served as acting assistant secretary since April. Marcus worked as the staff director of the U.S. Commission on Civil Rights for four years under George W. Bush and before that, worked in the Education Department’s Office for Civil Rights.
Many civil rights groups are waiting to cast judgment on Marcus. “He’s familiar with the law, with the work, so hopefully the Senate will fully explore how he intends to fulfill his duties,” said Rollin.
But, as The Intercept previously reported, Marcus has a history of campaigning for laws to punish people who support the Boycott, Divestment, and Sanctions movement, which encourages economic pressure against Israel for its violation of Palestinian human rights. Advocates worry that if Marcus is confirmed, he will push for similar measures in his new role, silencing pro-Palestinian voices. That would have a chilling effect on free speech — yet another attack on students’ civil rights.