//  6/28/17  //  In-Depth Analysis

By Alexandra Brodsky, Skadden Fellow, National Women's Law Center

Earlier this month, my colleagues at the National Women’s Law Center and I sued the Department of Education under the Freedom of Information Act (FOIA). In late January, we had requested records reflecting the Department’s enforcement of Title IX, which prohibits sex discrimination in education, in sexual harassment cases. Under FOIA, agencies have under a month to produce requested documents; in exceptional circumstances, they can work out an alternative production schedule with the requester. Yet by June, nearly six months later, we had yet to receive a single page or even an estimate of when we might. Joined by our co-counsel, Davis Wright Tremaine LLP, we brought suit in the U.S. District Court for the District of Columbia. This experience exemplifies the Department’s new commitment to opacity.

Education Secretary Betsy DeVos has mastered the art of dodging questions about her agency’s enforcement of civil rights laws—or its lack thereof. During her confirmation hearing, Senator Bob Casey (D-Pa) asked DeVos whether she would commit to continuing the Obama Administration’s robust enforcement of civil rights protections for student victims of sexual assault. DeVos, who had been nominated to run the country’s highest education authority, explained that she was not yet sure: apparently she believed such a promise would be “premature.”

This was not a stray signal of hostility to civil rights. During the same hearing, DeVos suggested that states could decide whether to follow federal law prohibiting discrimination against students with disabilities. (She later walked back her remarks, noting that federal civil rights law is, in fact, federal.) 

In the early months of her tenure, the Secretary has provided little further clarity—apart from making crystal clear her agency’s hostility to the rights of transgender students, which she has declined to enforce pursuant to a February “Dear Colleague Letter.”

Consider still another example: during a June hearing on the proposed budget, numerous senators pressed the Secretary as to whether private schools that received voucher funds under a proposed federal program would need to follow federal civil rights laws. Admittedly, the question is a complicated one. DC’s federally funded voucher program explicitly exempts private schools from civil rights laws, and Title IX includes a religious exemption that could provide a very large loophole. But in her response to each question, DeVos refused to deviate from a scripted, overly simplistic answer: that federal law follows federal dollars. She thus managed to obscure the agency’s actual position on this key issue.

DeVos’s confusing statements are worrisomely coupled with the Department’s increasing opacity. Assistant Secretary for Civil Rights Candice Jackson has suggested that post-investigation resolution agreements need not always be published, a move that would deprive the public of necessary information about schools’ civil rights violations and OCR’s attempts to resolve them.

Further, the Department has abandoned the once-public list of schools that had requested and received religious exemptions from Title IX, which allowed them to discriminate against students including LGBTQ people, sexually active women, and abortion patients.  This is information that students and their families have a right to know when choosing a college.

The Department’s recent retreat into opacity sharply contrasts with the shift toward transparency that OCR made under the leadership of Assistant Secretary Catherine Lhamon. When Lhamon first stepped into her role in 2014, I was a student advocate working with Know Your IX’s ED ACT NOW campaign, which demanded that the agency provide the public with information about its enforcement activities. As we explained, too many students had no idea that their schools were under investigation—and, without sanitizing sunlight, the Department often took years to resolve complaints, by which point the victims had long graduated.

Despite initial skepticism of our demands, Lhamon eventually committed OCR to transparency, publishing a list of schools under investigation and regularly releasing resolution agreements. This openness allowed students to monitor their schools and the public to monitor the agency.

Now, the Trump Administration threatens to return us to darker days of enforcement … in multiple senses of the word.

Opacity poses a number of problems for civil rights organizations like the National Women’s Law Center and, most importantly, our clients. For starters, we believe federal enforcement of students’ civil rights is crucial for equal access to education. But we can’t effectively push the Department to carry out its job without knowledge of what it is, in fact, doing.

Further, our ability to advise clients and helpline callers has been substantially compromised. For many students, a complaint to the Department of Education is far preferable to federal litigation: it’s more private, less expensive, and subject to friendlier standards. (Supreme Court precedent has created significant barriersfor students to receive money damages when suing their schools for mishandling sexual harassment reports.) Yet so long as the Department will neither publicly commit to enforcing civil rights statutes nor release information about its activities, we and the students we serve are left in the dark about which cases, if any, may be resolved by OCR consistent with the letter and spirit of the law.

We know from experience that these changes have a real effect on  young peoples’ lives. At the Law Center, we assist students facing a range of issues, including discriminatory discipline and push-out of pregnant and parenting students.

One of the issues about which we hear most frequently from girls and their families concerns schools’ inadequate responses to sexual harassment. We currently represent multiple young women who were forced out of the same Pennsylvania high school by administrators after they reported that they had been harassed, and in one case raped, by classmates. One of these students, Darbi Goodwin, ended up having to spend part of her junior year in a pilot cyber program, stuck at home taking classes she had already completed, and saw her GPA drop from a 3.9 to a 3.2. Another one of our clients was raped her freshman year at Dillard University by an alum whom the school knew had raped another student in the same dorm but had taken no steps to keep off campus; as a result, our client dropped out and is now homeless.

Under the Obama Administration, students like these finally saw robust enforcement of Title IX, which requires schools that receive federal funding to ensure that survivors can continue to learn in the wake of sexual harassment—including sexual assault. Now, neither they nor we know what to expect from the Department charged with protecting students’ rights.

To change that, we decided to sue the Department under FOIA. The day after the lawsuit was filed, we finally received a single responsive record from the agency. Yet we await many more. We hope that the Department chooses to turn them over willingly, but are confident that Judge Amy Berman Jackson will order a full production if not. Whether or not Betsy DeVos is doing her job, we are doing ours’.

Versus Trump: Going to Church In Times of COVID

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On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

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Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

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Versus Trump: Blurring Public and Private Conduct

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On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

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