“Beat Our Civil Rights Record” by Kenneth L. Marcus (Newsweek)

In his recent opinion piece published today by Newsweek, Kenneth Marcus is hopeful that the incoming administration will build upon the civil rights accomplishments of the current Department of Education’s Office for Civil Rights. 

Read the Op-Ed Here

Opinion By Kenneth L. Marcus 

Unsurprisingly the Biden administration plans to reverse course on civil rights, especially in education, reinstating policies that the Trump administration rescinded. This spans issues ranging from sexual violence to racial discipline to affirmative action. If President-elect Biden can beat the Trump administration’s record, then Republicans and Democrats should join together in supporting their work. But if they plan to throw the baby out with the bathwater, reversing the progress as well as the problems of the last four years, then they will have missed an important opportunity.

The Biden campaign reportedly wants to broaden the Education Department’s role in civil rights enforcement to what it was during the Obama administration. At that time, the Department’s Office for Civil Rights (OCR) prioritized systemic investigation over resolution of individual claims. If done properly, systemic investigations can impact thousands of students. The Trump administration pursued systemic sexual violence investigations at such places as Pennsylvania State University, Michigan State University, the University of Southern California and the Chicago Public Schools. Done pell-mell, however, the systemic approach means entering school systems with good intentions, but without exit plans for investigations that languish for years without resolution.

We see this in the data. Over the past three fiscal years, OCR resolved 1,507 more civil rights complaints “with change”—meaning they required schools to change discriminatory practices—as compared with the last three years of the Obama administration. This includes six times as many sexual violence allegations. When the Biden administration returns to the Obama approach, does it plan to resolve fewer cases than the Trump administration and require change at fewer schools and colleges? Or will the incoming administration find a way to combine the Obama administration’s ideals with the Trump administration’s efficiency? On this question hangs the fate of our nation’s most vulnerable student populations.

The Biden team reportedly wants to reverse Secretary Betsy DeVos’s Title IX regulation. Their goal is to increase protections for sexual violence survivors. But will they also reverse the advances in due process, as well as the new victim protections? Recall that federal courts have embraced some of the same due process rules, such as the right of cross-examination, that the new Title IX regulation established. At the same time, colleges are adopting the new regulatory requirements, which expand protections for victims of domestic and dating violence and stalking. Will this also be reversed?

Next, the Biden team will reportedly reverse the Trump approach to the disproportionate disciplining of Black students. Here again, if the Biden team can better identify and redress racial discrimination, they will deserve great applause. But it is one thing to reinstate a policy—words on a piece of paper—and a very different thing to achieve real results for children and their families. And if they do achieve change, will they reduce discriminatory treatment, or will they merely pressure schools to improve their numbers and loosen their discipline? The latter approach, while tempting, can hamper education at precisely the schools that serve our most underserved populations.

Similarly, the Biden team plans to reverse the Trump administration’s approach to affirmative action. If the incoming administration can increase and diversify the pipeline of high school graduates who are equipped to succeed in selective and highly selective universities, more power to them. But if they merely ignore the claims of Asian students who face tall odds of admission, despite sterling accomplishments, then their work will merit a different response. In the same way, we can support their goal of increasing protections for marginalized groups, but will they support all students, rather than cherry-picking which students deserve their protections? Will they, for example, enhance or diminish the progress the current administration has made in addressing campus anti-Semitism?

It is politically easy for an incoming Democratic team to reject their predecessors’ work. In our system, that is their right. What would be remarkable, however, is if they can achieve new victories while also building upon the advances of those who came before.

By: KENNETH L. MARCUS, CHAIRMAN, THE LOUIS D. BRANDEIS CENTER FOR HUMAN RIGHTS UNDER LAW