Civil rights enforcement in education: The federal role

The U.S. Department of Education’s Office for Civil Rights (OCR) is responsible for enforcing federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age in schools that receive federal aid. (I was a political appointee at OCR during the Obama administration, from 2011 to 2016.) 

On any given day, a phalanx of OCR’s nearly 600 employees — mostly attorneys and investigators in 12 regional offices — is busy examining just about every facet of life in the nation’s public schools. Yet, many Department of Education (ED) employees know little about what their OCR colleagues do. And I suspect that most K-12 educators have never heard of OCR at all.  

The office did not always operate in such obscurity. For instance, OCR played an outsized role in the effort to desegregate public schools. Within a few years of its creation in 1967, it filed more than 600 administrative proceedings against segregated school districts and cut off funding to 200 schools for noncompliance. (This was on top of the Department of Justice’s more than 500 school desegregation lawsuits over the same period; Le, 2010). In recent decades, however, the federal government’s efforts to integrate schools have been hampered by legal restrictions, and the number of intensely concentrated minority schools has more than tripled over the past 30 years (Frankenberg et al., 2019). OCR now has barely half the staff it did at the beginning of the Reagan administration, even though its caseload is three to four times larger than in the early 1980s (Curtis, 1981; OCR, 2016b; U.S. ED, 2020). OCR estimates its staffing will return to Obama-era levels this year, after dropping by more than 10% from 2017-19 despite a 10-20% boost in funding; OCR, 2020.)

Despite political turmoil and reduced staffing, OCR has continued to be effective at enforcing anti-discrimination laws. However, given that our public schools are likely to experience years of fiscal austerity in the wake of the COVID-19 pandemic, OCR may soon experience a significant uptick in complaints. When school budgets shrink and the competition for resources intensifies, the most vulnerable students always seem to get left behind. The widespread inequity may at last become too stark for OCR to address through its current methods alone.

To meet the growing demand to protect students’ rights, the agency will have to both increase staffing and rediscover certain policy principles, particularly in the area of racial diversity. But the federal government should also consider expanding OCR’s mission. After 20 years of test-based school accountability — first under No Child Left Behind (NCLB) and now under the Every Student Succeeds Act (ESSA) — it’s clear that this approach has not been sufficient to close achievement and opportunity gaps experienced by students of color, English learners, students with disabilities, and students living in poverty. The time has come for OCR to take on a larger role in promoting educational equity and excellence.

OCR’s recent activities 

Since its founding, OCR has enforced federal civil rights laws in three ways: It collects data on equity and opportunity gaps in schools, issues guidance and regulations related to schools’ civil rights obligations, and conducts investigations to curb civil rights violations.  

The least well-known of these activities is probably OCR’s Civil Rights Data Collection (CRDC), a remarkably robust biennial repository of data collected from 99.8% of the nation’s 13,000 school districts and more than 100,000 schools. The CRDC, accessible at https://ocrdata.ed.gov, includes measures of school climate, teacher and staff capacity, and opportunities provided to students according to their race or ethnicity, sex, English proficiency status, and disability status. Often, these data reveal alarming deficits and inequities. In recent years, for instance, the CRDC has found that schools with high Black and Latinx enrollment are twice as likely to have new teachers than schools with low Black and Latinx enrollment (OCR, 2016a) and that Black students are more than twice as likely as white students to be suspended, arrested, or referred to law enforcement (OCR, 2018).

OCR’s civil rights policy guidance tends to be more widely known by educators, and for good reason: This is how the agency makes known the rules and regulations schools must follow if they don’t want to get in trouble with the federal government. Since 2016, the Trump Administration has rolled back or changed direction on several Obama-era policies, including those aimed to curb sexual violence, end discriminatory school discipline practices, foster racial diversity and integration, and protect transgender students. However, other protections remain in effect, including a policy that defines schools’ legal obligation to ensure that students have equal access to educational resources irrespective of their race, ethnicity, or national origin. Earlier this year, OCR also issued guidance documents on the rights of English learners, students with disabilities, and students of color during the COVID-19 pandemic.

Finally, OCR investigates alleged civil rights violations at public schools (mostly involving discrimination related to disability status, sex, or race) and, if violations are found, works with local officials to address them (almost always without going to court). Over the past decade, the agency has investigated and resolved thousands of such cases, many of which are documented at https://ocrcas.ed.gov/ocr-search.

A scan of these cases reveals the remarkable breadth of OCR’s investigatory scope, as well as the agency’s capacity to mediate conflicts and promote equity in schools. For example, in one investigation involving Ohio’s Cleveland Metropolitan School District, OCR examined whether Latinx students —14% the district’s total enrollment — lacked equitable access to STEM education. Investigators found that most STEM schools were located on the city’s east side, when the Latinx population was heavily concentrated on the west side, and the district hadn’t regularly publicized STEM program information in Spanish. And two years ago, OCR investigated disparities in both program access (including access to honors and AP classes and gifted programs) and student outcomes (including graduation rates, GPAs, SAT scores, and performance on state exams) between predominantly Black and predominantly white schools in Henrico County Public Schools in Virginia.

These and thousands of other investigations have led districts to make concrete changes to ensure that all students have equal access to valuable resources and opportunities. Usually, such cases go unnoticed outside the school system being investigated. Without question, though, they have led to more equitable learning opportunities for millions of students. 

How might OCR ramp up its efforts? 

As I write these words, OCR’s future remains uncertain, as it depends largely on the outcome of the upcoming presidential election. The vast majority (99%) of OCR staff are career civil servants, not partisan political appointees, and they’ve shown for more than five decades that they will continue to do careful, important work regardless of who sleeps in the White House. Still, though, the election will have significant consequences for OCR.  

If President Trump is reelected, I assume that OCR will continue to remain at or near current staffing levels, Obama-era policy guidance will continue to be scuttled or shelved, and the agency’s career staff will continue doing its level best to monitor, investigate, and resolve civil rights violations.

Less clear is what will happen if Joe Biden wins the election. Biden’s website states that he plans to increase education funding dramatically and will support programs meant to ensure that “no child’s education opportunity is determined by their zip code, parents’ income, race, or disability.” That sounds good. However, the devil’s in the details. My first recommendation would be for him to restore OCR’s staffing to Reagan-era levels (i.e., double it) and appoint leaders at ED who will reinstate and update Obama-era civil rights guidance documents and strengthen the CRDC, protecting it from recent and proposed cuts.

At the same time, OCR should become more proactive in investigating glaring achievement and opportunity gaps within and between school districts and perhaps within states, which ESSA (like NCLB before it) has done little to address. Further, OCR should more systemically share information about possible civil rights violations, gaps in student access, school climate problems, and so on with ED’s Office of Elementary and Secondary Education (which enforces ESSA).  

Finally, the White House should work with Congress to encourage states, districts, and the executive branch to return to the business of eradicating racial segregation from schools (Epperson, 2008). Congress should also explore legal avenues to increase the ability of the Departments of Education and Justice to eliminate racial segregation and race-based educational disparities in states and districts. This is essential because, despite all its fine work in this area, only 8% of OCR’s substantive resolutions since 2013 have addressed racial discrimination (OCR, 2019). OCR should also collaborate with other ED offices and federal and state agencies to establish or reinvigorate technical assistance teams and grant programs designed to reduce racial segregation and close opportunity gaps.

No single federal agency can enforce its way to equity — to reach that goal will take concerted action across the federal government, as well as a renewed commitment from state and local governments, school communities, and advocates. Still, OCR could be poised to play a much larger role in the coming years to help schools and educators pick up the baton from the civil rights movement.   

References 

Curtis, F. (1981, November 27). Letter to Betty Lou Dotson. Washington, DC: U.S. General Accounting Office.

Epperson, L. (2008). Undercover power: Examining the role of the executive branch in determining the meaning and scope of school integration jurisprudence. Articles in Law Reviews and Other Academic Journals, 1156.

Frankenberg, E., Ee, J., Ayscue, J.B., & Orfield, G. (2019). Harming our common future. Los Angeles, CA: The Civil Rights Project.

Le, C.Q. (2010). Racially integrated education and the role of the federal government. North Carolina Law Review, 88 (3).

Office for Civil Rights. (2016a). 2013-2014 Civil Rights Data Collection: A first look. Washington, DC: U.S. Department of Education.

Office for Civil Rights. (2016b). Achieving simple justice. Washington, DC: U.S. Department of Education.

Office for Civil Rights. (2018). 2015-16 Civil Rights Data Collection: School climate and safety. Washington, DC: U.S. Department of Education.

Office for Civil Rights. (2019). Annual report to the secretary, the president, and the Congress. Washington, DC: U.S. Department of Education.

Office for Civil Rights. (2020). Fiscal year 2021 budget request. Washington, DC: U.S. Department of Education.

U.S. Department of Education. (2020). Fiscal year 2021 budget summary. Washington, Author.