At law conference, Trump administration officials explain their approach to civil rights enforcement

by Eric D. Randall

On Board Online • October 23, 2017

By Eric D. Randall

The "gotcha" days of heavy-handed and "aggressive" civil rights enforcement by the U.S. Department of Education's Office of Civil Rights (OCR) are over now that Donald Trump is president, according to current and former Trump administration officials who spoke at the 21st Annual Pre-Convention School Law Seminar.

That does not mean the Trump administration is less committed than the Obama administration to protecting the civil rights of students, said the head of OCR, Candice Jackson.

"We have so many OCR staff who have been with our agency for a long time and are eager to return to an approach that has worked well, in the past, which is to work with districts and provide technical assistance," said Jackson, the acting assistant secretary for OCR.

"We are going away from a 'gotcha' mentality," said Thomas Wheeler II, who recently left the administration after serving as assistant attorney general of the U.S. Department of Justice's Civil Rights Division.

"The intent is to work more collaboratively with school districts," said Wheeler, who served as counsel to Vice President Mike Pence when he was governor of Indiana. Wheeler worked on the transition team when Pence took over that function before moving to the Justice Department. He has now returned to Indiana to practice school law.

The Obama administration described itself as being committed to "aggressive enforcement," according to Jackson's PowerPoint presentation. The Trump administration is distinguishing itself by (1) taking a less heavy-handed approach to enforcement and (2) reversing policy statements called "Dear Colleague" letters on subjects such as transgender rights, which Trump administration officials have characterized as deviating from the letter of the law and potentially exerting an undue influence on the judiciary.

Regarding Dear Colleague letters, Wheeler explained why he is proud to have been the official who signed a document that reversed an Obama-era Dear Colleague letter on transgender rights. The document rescinded an official position that districts violate Title IX if they fail to allow transgender students to use the bathroom of their choice.

Wheeler cited a legal concept called Auer deference - the tradition of courts deferring to federal agencies regarding the technical interpretation of laws which they administer. Wheeler said the Trump administration didn't want to bind the hands of federal courts, including the U.S. Supreme Court, regarding bathroom access cases such as G.G. vs. Gloucester (Va.) County School Board.

The courts, not OCR, should determine what Congress intended Title IX to say, Wheeler said. Title IX does not mention gender identity as a possible basis of unlawful discrimination, although an advisory by New York Education Commissioner MaryEllen Elia and Attorney General Eric Schneiderman does.

In our system of government, unelected bureaucrats do have the authority to interpret and enforce the law. But they ought to do it in a fair and transparent way, Jackson said.

Landscape-changing pronouncements generally should take the form of regulations, Jackson said. That means the government goes through a process of notice, public comment and rule-making.

Regarding enforcement, OCR is obligated by law to investigate every complaint. Wheeler noted that school officials receive letters from OCR with the same level of enthusiasm that a taxpayer might have upon receiving a query from the Internal Revenue Service.

OCR has the power to cut off a district's federal funds, although the last time that happened was in 1987, Wheeler said.

Jackson said she wants OCR to be more of an advisor to districts, providing technical assistance regarding complying with the law.

NYSSBA General Counsel Jay Worona noted that while many school officials personally were sympathetic to the Obama administration, they chafed when they came under the scrutiny of Obama's OCR. For instance, in response to a single complaint of racial bias in school discipline, OCR has required districts to furnish years of records from school districts and drawn conclusions based on statistical patterns. That's a different kind of enforcement than seeing if an individual complainant's rights were violated.

Another panelist, attorney Greg Guercio of the Guercio & Guercio law firm, emphasized the negative effects of being the subject of an OCR investigation even when no violation is ultimately found. It's embarrassing and results in unfavorable news coverage, he said.

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