New Knot in Civil Rights Tug-of-War

The U.S. Department of Education recently inverted a strategy it tried in 1975 to cut back on its work enforcing civil rights laws, including Title IX. Public outcry from  organizations for minorities, women, and the disabled — plus a supportive court ruling — forced federal officials to back off in 1975. Will it today?

Historically, the Education Department’s Office for Civil Rights has used two approaches to enforce civil rights — investigating individual complaints of discrimination, and broader “compliance reviews” of an educational institution as a whole. Compliance reviews may be scheduled any time, or can arise from complaints.

Caspar Weinberger (Photo by Elvert Barnes Photography via Wikimedia/Creative Commons)

In June 1975 Caspar Weinberger, secretary of the Department of Health, Education, and Welfare (HEW, which housed the Office of Education until it became its own Department in 1979) proposed sharply reducing its investigations of individual complaints under the Ford Administration. Instead of investigating and resolving every citizen complaint of discrimination, HEW would only have to acknowledge the complaint and let the complainant know if HEW’s Office for Civil Rights would investigate the charge or roll it into a compliance review within one year. Three months earlier, a Federal District Court judge had ordered the Department to investigate all complaints of race discrimination in K-12 schools in 17 Southern and border states within 90 days.

HEW gave the public more than a month to comment on its proposal. A united front of 130 organizations collaborating as the Leadership Conference on Civil Rights plus 32 more groups blasted the proposal as an abdication of HEW’s responsibilities. They and their members in the National Organization for the Advancement of Colored People (NAACP), the National Organization for Women (NOW), the National Congress of Hispanic-American Citizens, the American Coalition of Citizens with Disabilities, and the other organizations contacted their elected representatives to raise a fuss.

HEW dropped its plan to cut back on complaint investigations.

Now, the Education Department has flipped that approach, cutting back instead on compliance reviews. The news came quietly, with no opportunity for public comment.

Education Secretary Betsy DeVos oversees the Office for Civil Rights’ cutback on investigations. (Education Department photo)

An internal memo from the acting head of the Office for Civil Rights, Candice Jackson, in June 2017 instructed its investigators to handle complaints of civil rights violations on a case-by-case basis, ProPublica first reported. Under the Trump Administration, they will “only” apply a more systemic approach when the complainant specifies a systemic problem or investigators decide a more systemic approach is needed. Under the Obama Administration’s Office for Civil Rights, some kinds of complaints automatically would trigger broader investigations requiring three years of data from an institution. The more systemic investigations helped identify patterns of discrimination that can be missed on a case-by-case basis, said former OCR Director Catherine Lhamon, who now heads the U.S. Commission on Civil Rights. The Jackson memo also eased up requirements for handling complaints of discrimination against transgender students.

In both 1975 and 2017, the education Secretaries faced huge backlogs of cases, saying the cutbacks were needed to speed things up. (Regardless, the Trump Administration wants to cut 46 employees from the Office for Civil Rights, according to its budget request for Fiscal Year 2018.) Both times, too, sex discrimination in violation of Title IX led the reasons for complaints in education. Both times, many colleges and universities liked the idea that they wouldn’t have to deal with the government as much.

In both time periods, the bipartisan Commission on Civil Rights looked askance at the Office for Civil Rights’ performance in upholding anti-discrimination laws. A 673-page report by the Commission noted that the government was doing less than it required of private industry with government contracts, a July 15, 1974 article in The Washington Star reported. Today’s Commission has begun a two-year investigation of civil rights enforcement in multiple agencies, alarmed by the proposed staff cuts, changes in the Department of Justice, and statements by Trump Administration officials.

The fear is that blaming a backlog of cases for cutting down enforcement work is a smokescreen for just letting discrimination be. And there seems to be plenty of it, judging by all those complaints.

The 1975 and 2017 situations are different in many ways, though the Leadership Conference on Civil Rights still is in action, issuing lots of press releases on behalf of its more than 200 membership organizations. Undoubtedly, a number of different and possibly new strategies will be needed to keep civil rights laws enforced.

It remains to be seen whether the current government changes will impair civil rights enforcement, though it’s likely. It remains to be seen whether energized coalitions of people hurt by discrimination can keep the government from backing off on its duty to fairness for all.

We have seen, though, that minorities, women, the disabled, LGBTQ communities, and others working together can create a powerful force that sometimes stops the government in its tracks and keeps it from going backward.

The Women’s March in Washington, D.C., January 21, 2017 (By Ted Eytan via Wikimedia/Creative Commons)