Department of Education’s Office for Civil Rights Essential to Protecting Students’ Civil Rights

Lauren Morando Rhim, Ph.D.

Executive Director and Co-Founder, National Center for Special Education in Charter Schools

Senators: “You claim to support civil rights and oppose discrimination, but your actions belie your assurances.”

34 Senators sent a letter to Secretary of Education Betsy DeVos this week outlining their disappointment and alarm regarding steps her administration has taken to diminish enforcement of civil rights for students around the country. Changes include budget reductions and narrowing the way the Office for Civil Rights (OCR) will approach civil rights enforcement. The push to reduce the role of OCR is fueled by concerns that OCR investigations are unnecessarily time consuming and onerous and broader philosophical discussions regarding the role of state and local officials versus the federal government. Advocates for narrowing the work of OCR have speculated that increased promulgation of OCR guidance under the Obama administration may have catalyzed a high level of complaints and infringed on local control. Of particular interest is the extent to which OCR is empowered to investigate whether or not a complaint is an indication of a “broader pattern” or conversely, limited to only examining the discrete set of circumstances.

An implicit assumption underlying the move to limit OCR is that parents and local and state authorities are in a position to actively protect students’ civil rights and have the proper incentives to do so. I would argue that a reliance on parents and local or state officials is shortsighted and will lead to an increase in violations of civil rights and constitutionally protected liberties. Recent revelations regarding institutionalized discrimination against students with disabilities in Texas is a cautionary tale demonstrating that this approach is spurious.

In December of 2016, journalist Brian Rosenthal published an expose in the Houston Chronicle that revealed a relatively long-standing “policy” in Texas designed to reduce over-identification of students as eligible to receive special education services. While the Texas Education Agency (TEA) argued that it had not developed policy or established special education caps, if it walks like a duck… In practice, the TEA issued guidance indicating that districts reporting that more than 8.5% of its students were eligible for special education would be flagged in their state report cards and potentially fined. As a result, over the next 11 years the statewide average of students receiving special education and related services decreased from 13% to 8.5%, resulting in hundreds of thousands of children being denied special education services. The relatively stable proportion of students eligible to receive special education in the U.S. has hovered around 13% for the last 16 years. It is important to acknowledge that there is significant variation in identification rates across the nation, with Massachusetts topping out at 16.7% and Colorado maintaining 10.53%, and there is also notable subjectivity in how students are identified as eligible to receive special education and related services. Nevertheless, it is clear that prior to implementation of this policy, Texas’ rates were in line with national averages and they are now the lowest in the country with no other legitimate reason for the decline. This policy was in place for 11 years with no complaint or lawsuit – in fact it was only after the article came out in the Houston Chronicle that OCR stepped in to investigate, demonstrating the futility of relying on parents and local authorities who are ill equipped to address individual complaints, much less identify and address larger patterns of discrimination.

The proposed reduction in the authority, scope, and budget/staffing of OCR is shortsighted and could have a significant negative impact on children. The ability to analyze data to identify patterns and determine whether a specific complaint is part of a broader problem is critical to the type of oversight the federal government and specifically OCR is charged with. Furthermore, proposed budget cuts will inevitably lead to inadequate staffing and resources to investigate and resolve complaints within a reasonable timeframe.  While one read of DeVos’ position is that decreasing OCR’s responsibilities and reach would lessen the time required to resolve complaints, a more reasonable interpretation is that the system will essentially grind down towards a halt without the resources necessary to conduct adequate investigations in a timely manner. Timely and accurate resolution of complaints actually calls for an increase in funding and staffing. Perhaps most importantly, the deterrence of civil rights violations will undoubtedly take a hit as the tone is set that complaints will not be taken seriously or investigated thoroughly. 

The National Center for Special Education in Charter Schools outlined these concerns in a statement to the Trump administration from its Equity Coalition and continues to urge the administration to take seriously its responsibility to uphold the civil rights of all students, including those with disabilities. A fully functioning Office for Civil Rights is critical to fulfilling this responsibility.