A Comprehensive and Practical Approach to Policy Guidance: The Office for Civil Rights’ Role in Education During the Obama Administration

Abstract

As the federal entity in charge of enforcing civil rights law, the U.S. Department of Education’s Office for Civil Rights (OCR) plays a critical role in addressing the vast inequities that exist in U.S. education. Through an analysis of the policy guidance OCR issued for a number of areas during the Obama administration, we illustrate the agency’s comprehensive and practical approach to helping ensure that young people from different backgrounds have equitable access to education and equitable experiences once enrolled. This review provides the foundation for understanding civil rights enforcement in the current context of inequality; it is particularly timely, as the Trump administration has begun a rollback of existing guidance, which has concerning implications for students’ civil rights.

Keywords

disparities diversity educational policy equity law/legal policy policy analysis

Under leadership appointed by the Trump administration, the U.S. Department of Education’s (DoE) Office for Civil Rights (OCR) has made, or contemplated, changes to policy guidance issued under the Obama administration in the areas of gender and racial discrimination (e.g., Blad, 2017; U.S. DoE, 2017a). While some welcome these changes and frame OCR’s role under the Obama administration as federal overreach (Strauss, 2017), many are concerned about the current administration’s rollback of civil rights enforcement, given the critical role OCR plays in addressing the vast inequities across myriad education sectors (Klein, 2017). For example, students of color, LGBTQ students, students with disabilities, English learners, and other marginalized groups experience substantial inequities in access and educational opportunity nationwide (e.g., Kosciw, Greytak, Giga, Villenas, & Danischewski, 2015; Losen, 2014; U.S. DoE, 2016a).

These changes to Obama-era policy guidance have brought the nation’s attention to the role OCR plays in enforcing various federal civil rights laws in the nation’s public schools, colleges, and universities (e.g., Murphy, 2017), a role that is critical for addressing numerous educational inequities. Federal civil rights laws provide the statutory basis of OCR’s enforcement role in the nation’s public schools, colleges, and universities that receive any federal funding. This includes protection against discrimination on the basis of (1) race, color, or national origin (Title VI of the Civil Rights Act of 1964); (2) sex (Title IX of the Education Amendments Act of 1972); (3) disability (Section 504 of the Rehabilitation Act and Title II of the Americans With Disabilities Act); and (4) age (Age Discrimination Act of 1975).¹ To carry out its mission, OCR (a) issues policy guidance, (b) resolves complaints from individuals who claim violations of these laws, (c) initiates compliance reviews, (d) provides technical assistance, and (e) collects and analyzes data. As the federal entity chiefly in charge of enforcing civil rights, OCR’s actions across these areas have direct and important implications for educational practice, research, and policy.

To facilitate broader understanding among educational researchers of the implications of Trump administration changes to OCR policy under the Trump administration, we provide an overview of OCR’s work during the Obama administration. In this essay, we focus in particular on OCR’s policy guidance, which include “general statements of policy” or “interpretive rules” (5 U.S.C. §553(b)(3)(A)) that help to clarify “concretized rights” that are implied but “not fully realized” in the law itself (Chen, 2014, p. 340). We do so because of the wide-ranging impact of policy guidance in explaining what enforcing civil rights in schools and universities means for educators, families, and communities and because of the changes to the guidance under the Trump administration. Policy guidance documents, which inform—and are informed by—OCR’s other enforcement activities, are unique in their role as a meaningful communication tool, with an immediate, national reach. While not legally binding, guidance documents offer a valuable resource for researchers, educators, and advocates; help parents and students understand the responsibilities of schools and universities under civil rights laws; and inform civil rights enforcement by other authorities. More specifically, we illustrate OCR’s comprehensive and practical approach under the Obama administration by providing examples of its policy guidance across the areas of student assignment, postsecondary admissions, immigration, student discipline, seclusion and restraint of students, inclusion of transgender students, sexual assault, and special education identification.²

OCR’s policy guidance across these areas helps to ensure that young people from different backgrounds have equitable access to diverse schools and universities and equitable experiences once enrolled in these institutions. We demonstrate the practical approach of this guidance, which, we argue, exemplifies the type of enforcement necessary in the contemporary context of inequality. We argue further that changes to OCR guidance could create serious risks for civil rights enforcement and leave many school districts and universities unsure of their legal obligations. More importantly, they could leave students more vulnerable to discrimination.

Overview of OCR Enforcement: Then and Now

OCR was first established in the 1960s in the Office of Education, which was housed within the U.S. Department of Health, Education, and Welfare, a predecessor of the DoE.³ During its early stages, OCR’s work largely consisted of ensuring that black and white students—typically in Southern states—attended the same schools. OCR’s guidelines are credited with effecting modest but significant gains in school desegregation in the 1960s (Cascio, Gordon, Lewis, & Reber, 2010; Giles, 1975; Orfield, 1969), as they filled a gap in understanding of what desegregation required. The federal courts gave considerable deference to the guidelines and adopted them in numerous rulings made in the mid- to late 1960s (Frankenberg & Taylor, 2015). Fifty years later, OCR still seeks to ensure that K–12 and higher education students of different races and ethnicities encounter no barriers to educational access and that all students are welcomed equally. It does so, in part, through its guidance on the use of race-conscious policies in K–12 and postsecondary education and on the enrollment of students from immigrant families. Changing jurisprudence and legal understanding in a variety of civil rights domains (including a dramatic decline in the number of court desegregation orders for K–12 and higher education) has raised new barriers that make it increasingly difficult for OCR to fulfill its mission at a time of incredible diversity and inequality in schools and universities.

Our analysis of OCR guidance issued under the Obama presidency suggests that the administration’s underlying theory of action included the understanding that a comprehensive and practical approach to guidance was needed to fully protect students’ civil rights.⁴ This approach included not only determining whether diverse students are enrolled in the same schools and universities but also ensuring that they are treated fairly and have equitable educational opportunities within those institutions. Given OCR’s role in enforcing various civil rights laws, this commitment included a number of historically marginalized communities. As such, OCR in recent years has advised K–12 districts on their responsibility to ensure that school policies, such as student discipline or seclusion and restraint, do not create another barrier that disproportionately limits the ability of students of color and/or students with disabilities to access appropriate instruction.

This “revamped,” practical approach has included paying particular attention to the format of guidance documents, such as writing in plain prose (rather than using academic or legal jargon) to help make documents more accessible, and providing hypothetical examples to demonstrate ways to serve all students equally and prevent discrimination (U.S. DoE, 2012, p. 11). In addition, question-and-answer and/or fact sheets (sometimes in multiple languages) often accompanied the OCR guidance. Indeed, perhaps because of the accessibility of the documents produced, researchers and practitioners are using OCR guidance issued under the Obama administration as a framework for addressing and preventing civil rights violations in the current environment (e.g., Crawford, 2017; Davis & Apuzzo, 2016).

OCR’s Comprehensive and Practical Approach Under the Obama Administration

We organize our review of OCR’s policy guidance during the Obama administration into three interrelated areas that respond to or are informed by (1) developments in the law, (2) findings from OCR’s other activities (i.e., complaint investigations, Civil Rights Data Collection, compliance reviews, and technical assistance), and (3) findings from researchers or external experts. In our discussion, we highlight OCR’s practical approach and comprehensive focus on ensuring equitable access and treatment in schools, colleges, and universities.

Responses to Developments in the Law

Legal decisions across the areas of OCR enforcement often require guidance or interpretation. OCR’s response during the Obama administration was to inform researchers, practitioners, and policymakers about the implications of any such changes in the law (see Table 1 for case descriptions). During this time, OCR extended its 50-year legacy of ensuring that students of all races/ethnicities have access to desegregated educational settings. Educational institutions needed this guidance to create policies and practices that protect individuals’ civil rights.

Table 1

Significant U.S. Supreme Court Cases Regarding Racial Diversity in Education

Case	Holding/Ruling
Regents of the University of California v. Bakke (1978)	Holding constitutional the use of race as a factor in college admissions while also finding specific racial quotas unconstitutional.
Gratz v. Bollinger (2003)	Holding unconstitutional a race-conscious admissions program that automatically awarded points to applicants from certain racial minorities as not narrowly tailored to the compelling interests of the educational benefits of diversity.
Grutter v. Bollinger (2003)	Holding, as narrowly tailored, the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate and reiterating a compelling interest in the educational benefits of diversity.
Parents Involved in Community Schools v. Seattle School District No. 1 (2007)	Holding that school districts had compelling interests in implementing voluntary integration policies to address racial isolation and promote benefits of diversity, but striking down two districts’ race-conscious student assignment policies as not being narrowly tailored in their use of race/ethnicity.
Fisher v. University of Texas I (2013)	Holding that court of appeals did not apply correct standard of strict scrutiny and remanding the case to the lower court for the correct application of the standard.
Fisher v. University of Texas II (2016)	Holding that the race-conscious admissions program, as implemented at the University of Texas at Austin, was narrowly tailored to further a compelling interest in diversity, thereby satisfying the strict scrutiny standard required by the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

Student assignment in K–12 schools

School segregation in the United States has increased in recent decades (Reardon, Grewall, Kalogrides, & Greenberg, 2012), due in part to an earlier line of U.S. Supreme Court decisions reducing remedial desegregation efforts in the 1990s. To counter school segregation, some districts voluntarily chose to integrate schools even if the courts never or no longer required such efforts. After the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1, districts became reluctant to use voluntary integration policies because of concerns about legal risks; thus, they switched to race-neutral policies, which typically are less effective, or abandoned integration efforts altogether (Reardon & Rhodes, 2011; Reardon, Yun, & Kurlaender, 2006). In 2011, OCR and the U.S. Department of Justice (DoJ) jointly issued guidance to clarify what strategies were permissible for achieving diverse schools or preventing racial isolation in K–12 schools (U.S. DoE & DoJ, 2011b). In doing so, OCR rescinded a 2008 “Dear Colleague” letter it had issued about the decision, which was a shorter document with little practical guidance and a considerably different interpretation of the permissibility of race-conscious policies in K–12 schools. OCR explained that it was “issuing this guidance to explain how, consistent with existing law, elementary and secondary schools can voluntarily consider race to further compelling interests in achieving diversity and avoiding racial isolation” (p. 1). OCR also emphasized the degree of flexibility school districts had in their efforts to achieve the compelling interests identified in Parents Involved.

The guidance explained how to interpret the opinions in the case, in particular the concurring opinion of Justice Kennedy, which was the controlling opinion. Kennedy noted that school districts had two compelling interests when considering race in voluntary integration policies: achieving diverse schools and reducing racial isolation.⁵ The guidance, which described an appropriate process to determine student assignments, detailed permissible strategies, including the use of race/ethnicity. These strategies included considering the racial composition of a neighborhood when establishing a new school or conducting outreach to certain groups to achieve diverse enrollments. Given the complexity and confusion in the field at the time (Bhargava, Frankenberg, & Le, 2008; McDermott, DeBray, & Frankenberg, 2012; National School Boards Association & College Board, 2007; Siegel-Hawley, & Frankenberg, 2011), the illustration of “practical examples . . . consistent with prior Supreme Court opinions” (U.S. DoE & DoJ, 2011b, p. 9) was especially necessary. The practical nature of the guidance helped to ensure that districts did not unduly limit or end the use of race in voluntary integration policies after the Court’s decision. While the guidance was necessary to keep as many options as possible available for school districts, it is unlikely that these measures alone will be enough to stem the current resegregation of K–12 schools (Governmental Accountability Office [GAO], 2016; Orfield & Frankenberg, 2014).⁶ Moreover, in July 2018, the Trump administration rescinded the 2011 guidance on race-conscious policies in K–12 and replaced it with the 2008 Dear Colleague letter previously in place, emphasizing race-neutral efforts. The law, as set forth in Parents Involved, remains, but this change in guidance documents, coupled with policy and legal efforts in higher education described below, further chills voluntary race-conscious policy efforts. With emerging evidence that racial segregation increases when race-neutral policies are implemented (McMillian, Fuller, Hill, Duch, & Darity, 2018; Reardon & Rhodes, 2011), OCR’s discouragement of race-conscious policies may exacerbate resegregation.

Student postsecondary admissions

In 2011, OCR also issued guidance that outlined the legal framework for considering race as a factor in postsecondary admissions and the implications for higher education practitioners and administrators (U.S. DoE & DoJ, 2011c). As with the guidance regarding the Parents Involved decision, OCR outlined broad areas for colleges and universities to consider as well as practical steps they could take in admissions, outreach, and recruitment to further their interest in the educational benefits of diversity. One particularly helpful clarification was whether institutions were required to implement race-neutral approaches before considering race-conscious measures. This area was particularly confusing for colleges and universities seeking to comply with the legal parameters outlined in Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003). The guidance clarified that these legal decisions required consideration of race-neutral measures that were “workable,” such as those that would yield racial diversity but not require the sacrifice of other educational priorities, such as selectivity. To be sure, the question of what is “workable” can be complicated and requires more specifics than what was in the guidance (see Kidder, 2016), but even that limited discussion provided important information for colleges and universities using race-conscious admissions.

Since 2011, when legal challenges to admissions policies culminated in two separate decisions in Fisher v. University of Texas (2013 and 2016), OCR issued additional guidance and letters clarifying the Court’s rulings and the permissible parameters for considering race as a factor in postsecondary admissions. In 2013, for example, administration guidance clarified that the law had not changed as a result of the Court’s first decision in Fisher, which remanded the case back to the lower court.⁷ A question-and-answer document in 2016 explained that the Court’s second decision, Fisher II, also did not change prior guidance (U.S. DoE & DoJ, 2013, 2016b). In 2014, after the Supreme Court’s ruling in Schuette v. Coalition to Defend Affirmative Action et al., a case that challenged the constitutionality of the state of Michigan’s ban on affirmative action, OCR issued a letter noting that all guidance documents related to Grutter and Fisher remained in effect—an important clarification for colleges and universities located in states where affirmative action was not banned (U.S. DoE & DoJ, 2014d).

In July 2018, OCR rescinded the 2011, 2013, and 2016 guidance documents on the use of race in postsecondary admissions, a move that has been widely criticized by educational leaders and civil rights advocates (Anderson & Balingit, 2018). While OCR has replaced these documents with prior guidance issued under the Bush administration that encouraged instead so-called race-neutral admissions practices, it is important to recognize that the rescinded guidance does not change 40 years of Supreme Court precedent that has endorsed the constitutionality of using race as one factor among many in admissions for postsecondary institutions to advance their educational mission.

Responses to Findings From OCR’s Other Areas of Activities

OCR gathers information from common areas of civil rights violations that become apparent through its investigations of complaints or its technical assistance efforts and from emerging data trends (e.g., from OCR’s biennial survey, known as the Civil Rights Data Collection). And these findings inform guidance for ensuring equitable access on the basis of national origin, race, sex, or disability as well as equitable experiences (i.e., inclusion) within schools, colleges, and universities. During the Obama administration, this focus on inclusion was particularly relevant to guidance in the area of student discipline and treatment for transgender students.

Immigration

During the Obama administration, some states passed restrictive immigration laws that affected K–12 education. Based on concerns that state and district actions were chilling the enrollment of students on the basis of national origin, DoJ and OCR jointly issued a series of “Dear Colleague” letters, beginning in May 2011. However, these documents created confusion as to whether the 2011 guidance permitted districts to require student birth certificates for enrollment (U.S. DoE & DoJ, 2011a). In 2014, DoJ and OCR responded by replacing the 2011 documents with updated versions that made it clear they could not. This action expanded OCR’s focus on ensuring access to K–12 schools for children of all races and ethnicities to include national origin. The “Dear Colleague” letter reiterated that the 1964 Civil Rights Act and the 1982 Plyler v. Doe decision provided the basis on which schools must allow students to enroll, regardless of their or their parents’ immigration or citizenship status. It reminded states and districts that state laws set minimum and maximum age requirements for all children to attend school, regardless of nationality. OCR released the 2014 guidance document simultaneously with a question-and-answer document that largely focused on how to ensure that the documentation public schools required did not prevent students from immigrant families from enrolling in school (U.S. DoE & DoJ, 2014b, 2014c). For example, the guidance distinguished between documents establishing residency within a school district and those establishing citizenship, the latter of which, if required, would violate students’ rights. The document also recommended measures that districts and, importantly, states should take to ensure that they support students from immigrant families (e.g., assessing whether document requests, even if permissible, might deter immigrant families from enrolling their children). OCR also clarified that educators are responsible for reviewing data and investigating reasons for a precipitous drop in enrollment by any group. OCR released these documents in English and Spanish, which helped communities understand both their rights and the educators’ responsibilities.

In 2015, consistent with OCR’s focus on ensuring not only equal access to schools but equal and full participation after enrollment, DoJ and OCR, along with the Department of Health and Human Services (HHS), issued a fact sheet outlining the ways schools and districts must ensure that children are participating in their education “meaningfully and equally” (U.S. DoE, DoJ, & HHS, 2015).⁸ Although the fact sheet did not explain the reason for its release, media reports documented that unaccompanied immigrant children had been barred from or delayed in enrolling in public schools in at least 35 districts, often because the children or those caring for them lacked the documentation required for enrollment or to prove eligibility for special educational programs (Coleman & Avrushin, 2017). While the 2014 guidance remains in place, the Trump administration’s immigration policies are creating new and serious challenges for schools in their efforts to ensure equal access and participation for children from immigrant families (Scown, 2018).

Student discipline

In 2014, continuing their commitment to target discrimination and ensure equal opportunity, the DoJ and OCR issued guidance related to student discipline. The document presented civil rights data illustrating extreme disparities in student discipline (U.S. DoE & DoJ, 2014a). These data showed, for example, that African American students comprise 15% of all students but 36% of those who were expelled, 35% of students with one suspension, and 44% of students with more than one suspension. While not necessarily enough to establish a civil rights violation, these disparities trigger further examination by OCR. Reflecting OCR’s understanding of how differential within-school treatment infringes on students’ civil rights, the guidance document cited research about the possible consequences of exclusionary discipline, including substance abuse, lower academic achievement, and involvement with the juvenile justice system (e.g., Arcia, 2006; Hemphill, Toumbourou, Herrenkohl, McMorris, & Catalano, 2006; Raffaele Mendez, 2003).

Importantly, the letter outlined the legal framework used to assess allegations of discrimination on the basis of race, including two ways discrimination may manifest in the administration of student discipline: different treatment or disparate impact. Different treatment encompasses a policy that is “discriminatory on its face” or “neutral on its face (meaning the language of the policy does not explicitly differentiate between students based on their race), but the school administers the policy in a discriminatory manner” (U.S. DoE & DoJ, 2014a, p. 7). Disparate impact is when schools “evenhandedly implement [on their face] neutral policies and practices that, although not adopted with the intent to discriminate nonetheless have the unjustified effect of discriminating against students on the basis of race” (U.S. DoE & DoJ, 2014a, p. 11). This clarification was critical for addressing and preventing racial and ethnic disparities in student discipline, which are well-documented in the literature (e.g., Losen, 2014; Skiba et al., 2011; Skiba et al., 2014).

This guidance illustrated OCR’s practical approach to civil rights enforcement, which helped districts understand the legal framework. The document included a flow chart for investigating each type of allegation of racial discrimination in student discipline. One section contained examples of the nuanced ways discrimination can occur and a list of potential remedies. The guidance also supported the use of restorative and schoolwide approaches to address school climate and student misbehavior. OCR and DoJ (U.S. DoE & DoJ, 2014e) concurrently released a package of guiding principles and additional resources related to supportive school discipline practices. Following issuance of the federal guidance, national organizations issued guidance and provided training related to school discipline (Bhargava, 2017).

Four years later, inequalities in discipline persist (GAO, 2018; Losen, 2018), yet the Trump administration is considering rescinding this guidance (Blad, 2017; Ujifusa, 2017; U.S. Commission on Civil Rights, 2017). Opponents of the guidance argue that it infringes on local authority to use student discipline as a tool to promote student safety. However, higher suspension rates do not appear to deter behavior (Losen, 2017); in fact, their use is associated with a less safe environment (Steinberg, Allensworth, & Johnson, 2014). Given these considerations, civil rights organizations, educational leaders, and others are concerned about the possibility that the guidance will be rescinded (Educators for Excellence, 2018; Leadership Conference on Civil and Human Rights, 2018), a decision that the Trump administration is currently weighing.

Seclusion and restraint

OCR issued another “Dear Colleague” letter in 2016, this one on the seclusion and restraint of students with disabilities (U.S. DoE, 2016c). The letter was in response to 2013–2014 data from the Civil Rights Data Collection indicating that students with disabilities, who make up 12% of the student population, experience seclusion and restraint at alarming rates (e.g., 67% of students with disabilities are secluded or restrained; p. 2).⁹ The 2016 seclusion and restraint guidance (1) operationalized OCR’s definition of seclusion and restraint, (2) presented OCR’s legal authority as it relates to Section 504 of the Rehabilitation Act and the Americans With Disabilities Act, and (3) described the legal standard OCR uses to determine whether the use of seclusion or restraint violates federal civil rights laws. The guidance specifically noted that, if school districts continually use seclusion or restraint when less restrictive measures could be equally effective in preventing the potential harm, it would likely amount to a violation of federal civil rights laws. The guidance further clarified that Section 504 does not broadly prohibit the use of seclusion and restraint, which are not permissible if they constitute “unnecessary different treatment” or originate from a policy with “a discriminatory effect on students with disabilities” (p. 12). The user-friendly question-and-answer format used examples to clarify how seclusion and restraint may violate the right of a student with a disability to a free appropriate public education.

Transgender student inclusion

In response to a growing number of questions from the field and informed by stakeholders, OCR and DoJ released a 2016 “Dear Colleague” letter addressing their interpretation of Title IX as it relates to transgender students (U.S. DoE & DoJ, 2016a). In February 2017, the Trump administration rescinded this letter, citing concerns that OCR had exceeded its interpretive authority and the need for greater deference to the states (U.S. DoE & DoJ, 2017). The guidance had built on earlier guidance that explained the ways in which lesbian, gay, bisexual, and transgender students may experience harassment on the basis of sex (U.S. DoE, 2010) and clarified that discrimination against transgender students falls squarely within Title IX’s prohibition against sex discrimination. Citing an extensive list of legal sources, including prior OCR complaint decisions, DoE and DoJ confirmed that their interpretation of Title IX was consistent with that of other agencies (e.g., Equal Employment Opportunity Commission and U.S. Department of Labor) and courts’ interpretations of requirements based on sex. To help ensure clarity and relevant terminology, the document provided definitions of terms such as “gender identity” and “transgender.”

The now-rescinded guidance presented an overarching statement regarding civil rights, stating that “[a]s is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students” (U.S. DoE & DoJ, 2016a, p. 2). The guidance covered a wide range of circumstances where transgender students might experience discrimination. While much national attention on the subject has related to the use of bathrooms and locker rooms, the guidance—drawing from prior civil rights cases—addressed additional areas of inequity and discrimination, such as education records, sex-segregated activities, athletics, harassment, and student safety. Demonstrating the many ways school districts may fulfill their Title IX obligations and as further evidence of OCR’s commitment to a practical approach, the guidance also included a companion DoE document that included common questions, examples of state and district policies, and practices to address these questions (U.S. DoE, 2016d). These resources helped equip school districts with the tools to address the inequities that transgender students experience, including the academic, psychological, and health-related harm that results from a lack of inclusive policies (e.g., Kosciw et al., 2015; McGuire, Anderson, Toomey, & Russell, 2010; Wernick, Kuluck, & Chin, 2017).

The current administration’s decision to rescind the 2016 guidance has already impacted OCR’s enforcement and the field more broadly. Specifically, OCR will no longer investigate transgender students’ complaints of sex discrimination for denied access to bathrooms or locker room facilities (Holden, 2018). Similarly, in 2017, citing the new guidance that rescinded the 2016 guidance described above, the Supreme Court remanded a case involving a transgender student who was denied access to facilities that corresponded with his gender identity (Gloucester County School Board v. G.G., 2016). The decision to rescind the guidance has led to a great deal of confusion regarding Title IX, including the need for clarification within the case law. Moreover, school districts are left unsure of their legal obligations under Title IX, and transgender students remain vulnerable to discrimination. Although the Trump administration rescinded the guidance, lower federal courts have begun to clarify the rights of transgender students under both Title IX and the Equal Protection Clause of the Fourteenth Amendment, often ruling in favor of transgender students (e.g., Evancho v. Pine-Richland School District, 2017; Whitaker v. Kenosha Unified School District, 2017). The rationale in these court rulings more closely aligns with the approach of 2016 OCR guidance issued under the Obama administration.

Use of Research

OCR’s responsibility is to identify, prevent, and address discrimination. Research is used to support this role, and while it may not be the driving force behind OCR’s work, it does have the potential to inform the agency’s approach and illuminate disparities that may be the result of discrimination. OCR’s guidance in the areas of sexual assault and special education identification illustrates the ways its work has been informed by research documenting the myriad barriers and challenges students face in their educational institutions.

Title IX

Supported by research findings about the prevalence of sexual assault and sexual violence on college campuses in particular, the Obama administration issued a “Dear Colleague” letter on sexual violence in 2011 (U.S. DoE, 2011). The 19-page letter, which cited a national research report and summary statistics compiled by various agencies, documented “the statistics on sexual violence [that] are both deeply troubling and a call to action for the nation” (p. 2) and clarified OCR’s 2001 guidance report on the topic. The 2011 letter focused on the experiences of students after they enrolled, outlining in particular the comprehensive efforts that institutions can undertake to prevent sexual violence. To this end, the 2011 guidance defined important terms (sexual discrimination, sexual harassment, hostile environment, sexual violence) and clarified the standard of review (i.e., a preponderance of evidence) for determining whether a student violated an institution’s sexual harassment policy.

In its aftermath, the letter generated substantial criticism and confusion across college and university campuses (Sun, Scott, Sponsler, & Hutchens, 2014) as well as concern that it threatened due process (Shire, 2015) and freedom of expression (Creeley, 2013). In 2014, to address requests for clarification and help educational institutions meet their obligations to students and federal regulations, OCR issued an extensive question-and-answer document (U.S. DoE, 2014b).¹⁰ For the first time ever, OCR also published a list of colleges and universities under investigation for violations of Title IX (U.S. DoE, 2014c). These efforts together generated substantial attention to the prevalence of sexual assault on college campuses and to the efforts needed to implement coordinated responses to protect students from sex discrimination.

Relying in part on prior criticism of the guidance, OCR rescinded the 2011 letter and related 2014 document in September 2017 (U.S. DoE, 2017a), leaving in place prior 2001 guidance and establishing interim guidance that gave colleges and universities substantially more discretion in the standard of review (i.e., a preponderance of evidence or a clear and convincing evidence standard), time frame (i.e., no fixed time frame), and appeals process (i.e., appeals by both parties or only by accused student) they used to resolve complaints (U.S. DoE, 2017b). These changes have been met with widespread criticism of the rollback of clear protections that were developed in consultation with numerous stakeholders, including students accused of sexual assault, and clarification colleges had requested in order to better fulfill their responsibilities under Title IX (Kreighbaum, 2017; National Women’s Law Center, 2017). While colleges and universities may not change existing policies immediately, the substantial discretion they now have under the interim guidance risks leaving students, particularly those who initiate complaints of sexual misconduct under Title IX, with fewer protections.

Special education identification

In 2016, OCR issued guidance to address racial disparities in special education, which made numerous references to research exemplifying OCR’s important role in bridging the gap between research and policy. The document noted three trends related to racial disparities: “(1) over-identification of students of color as having disabilities; (2) under-identification of students of color who do have disabilities; and (3) unlawful delays in evaluating students of color for disability and their need for special education services” (U.S. DoE, 2016b, p. 2). The letter thus illustrated OCR’s contemporary enforcement responsibilities and, by simultaneously addressing discrimination on the basis of race and disability, acknowledged the various and often intersecting ways students may encounter discrimination.

Like the 2014 school discipline guidance, the 2016 special education guidance presented a legal framework that specified two ways racial discrimination can occur: different treatment and disparate impact. The document emphasized special education referrals, evaluations, and the provision of special education services. Throughout this discussion, OCR referenced research spanning multiple disciplines. For example, to support the idea that stereotypes can impact adults’ expectations of students, OCR cited research from the fields of psychology and law (e.g., Okonofua & Eberhardt, 2015). The document also cited research related to medicine, education, and sociology. Although a footnote to the 2016 document clarifies that the research cited is for informational purposes, the explicit use of research is representative of OCR’s practical approach to civil rights enforcement.

Conclusion

This overview of OCR’s policy guidance demonstrates that the agency has engaged in a comprehensive and practical approach to fulfilling its mission of “ensur[ing] equal access to education and . . . promot[ing] educational excellence throughout the nation through vigorous enforcement of civil rights” (OCR, 2017). OCR fulfills this mission by targeting both overt and hidden discrimination at their roots and by recognizing the complex ways educational inequality persists in both access to education and students’ educational experiences. As described above, OCR’s efforts under the Obama administration had a direct impact on education policies and practices, as they helped protect the civil rights of students in our contemporary context of inequality.

Researchers have played a significant role in uncovering educational disparities through analyses that informed OCR’s findings of discrimination and their subsequent guidance and enforcement efforts. In the current political environment, it is critical that researchers continue to engage in relevant research and use that research to inform federal civil rights enforcement that protects students’ civil rights and promotes educational equity. Researchers could also form partnerships with K–16 educators to increase knowledge and awareness about best practices, grounded in both the law and research evidence, to offer equal educational opportunities to students who traditionally have been marginalized. Regardless of whether the guidance from the Obama administration is still in force, has been rescinded, or may soon be rescinded, these and other topics are areas in which ongoing documentation is needed to address persistent, comprehensive inequities in education.

Footnotes

Notes

Authors

MARIA M. LEWIS, PhD, JD, is an assistant professor in education policy studies at the Pennsylvania State University and an affiliate faculty member at Penn State Law, 204G Rackley Building, University Park, PA, 16802; mml25@psu.edu . Her research is situated at the intersection of K–12 education law and policy, particularly as it relates to equity and civil rights.

LILIANA M. GARCES, EdD, JD, is an associate professor at the University of Texas at Austin and affiliate faculty at the University of Texas School of Law; Sánchez Building 310H, D5400, Austin, TX 78712; liliana_garces@utexas.edu . Her research examines the intersection of law and educational policy, with a focus on access, diversity, and equity in higher education and the use and influence of social science research in law.

ERICA FRANKENBERG, EdD, is an associate professor of education and demography and director of the Center for Education and Civil Rights at the Pennsylvania State University, 200 Rackley Building, University Park, PA 16802; euf10@psu.edu . Her research focuses on race-conscious education policies and politics, racial desegregation and inequality in K–12 schools with an emphasis on segregation in suburban areas, school choice and racial stratification, and the connections between school segregation and other metropolitan policies.

References

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