May 03, 2018

Following Reports That Trump Administration Is Dismissing Hundreds Of Civil Rights Complaints Without Justification, Gillibrand, Mccaskill Call Out Secretary Of Education Devos For Rolling Back Title Ix Protections, Demand Release Of Detailed Information On All Title Ix Cases

Washington, DC – U.S. Senators Kirsten Gillibrand (D-NY) and Claire McCaskill (D-MO) today wrote a letter calling out Secretary of Education Betsy DeVos for rolling back Title IX protections and demanding the Department of Education release detailed information on all Title IX cases. This letter comes following reports that under DeVos’s leadership, the Department of Education’s Office of Civil Rights (OCR) is dismissing civil rights cases that they consider burdensome.

“We are concerned by recent reports that the new manual will have the effect of diminishing the rights afforded to students under the guise of efficiency,” the Senators wrote. “…In addition, we are troubled by the fact that the Office of Civil Rights is no longer accepting complaints from transgender students about equal access to the facilities.  The notion that these changes were made solely to improve efficiency is insufficient in light of the Administration’s request to reduce funding for OCR, and are contrary to the views of many civil rights advocates who believe that changes to OCR’s investigatory procedures will result in increased caseloads because it impedes investigators’ ability to address the underlying issues that result in recurring discrimination.”

Gillibrand and McCaskill, who are sponsors of the bipartisan Campus Accountability and Safety Act legislation to combat sexual violence on college campuses, previously requested the same information from the Obama Administration in 2016. The Obama Administration sent a very detailed report to the Senators in response. The Trump Administration has yet to release any information about its current civil rights caseload, only that it has dismissed many cases with no explanation why. 

The text of the Senators’ letter is available here and below:

May 2, 2018

The Honorable Betsy DeVos

Secretary

U.S. Department of Education

400 Maryland Avenue, SW

Washington, D.C. 20202

Dear Secretary DeVos,

We write today to express concern about the U.S. Department of Education’s Office for Civil Rights’ (OCR) updated Case Processing Manual. We very much support the mission of the Department and OCR to “ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights in our nation’s schools.” This mission is critical to enforcing Federal civil rights laws prohibiting discrimination in programs or activities that receive financial assistance from the Department of Education.

The new provisions of  the Case Processing Manual, “provide OCR with the procedures to promptly and effectively investigate and resolve complaints, compliance reviews and directed investigations…” We are concerned by recent reports that the new manual will have the effect of diminishing the rights afforded to students under the guise of efficiency. This includes the decision to dismiss cases reflecting a pattern of complaints previously filed with OCR or filed for the first time against multiple recipients, and the removal of all mention of “systemic issues”. In addition, we are troubled by the fact that the OCR is no longer accepting complaints from transgender students about equal access to the facilities.  The notion that these changes were made solely to improve efficiency is insufficient in light of the Administration’s request to reduce funding for OCR, and are contrary to the views of many civil rights advocates who believe that changes to OCR’s investigatory procedures will result in increased caseloads because it impedes investigators’ ability to address the underlying issues that result in recurring discrimination.

In previous years, the Department shared information that furthered our understanding of the scope and scale of OCR’s enforcement and technical assistance activities. Your Department has not publicly released data on its activities since you took office. We are writing to request that you provide us with updated information on the Department’s activities related to Title IX enforcement and technical assistance, and appreciate your prompt reply to this request.

For each of the questions numbered 1 through 6 we ask that you provide the requested information broken down by month for the past two years with respect to all Federal civil rights laws that OCR enforces, as well as with respect to the following specific areas:

  1. Sexual violence in postsecondary education,
  2. Sexual violence in elementary and secondary education,
  3. School discipline with respect to Title VI of the Civil Rights Act of 1964,
  4. School discipline with respect to Section 504 of the Rehabilitation Act of 1973,
  5. Restraint and seclusion,
  6. Racial harassment and/or racially-hostile environments in elementary and secondary education,
  7. Racial harassment and/or racially-hostile environments in postsecondary education,
  8. Access to and enrollment in high-rigor courses,
  9. Transgender students, and
  10. English learners in elementary and secondary education.
  1. What is the total number of complaints received by OCR?
  2. What is the percentage of complaints received by OCR in a given month that are dismissed?
  3. What is the number of cases that OCR opened for investigation?
  4. What is the number of Section 302 closures (resolution agreement reached prior to the end of an investigation)?
  5. What is the number of Section 303(a) closures (investigative determination of insufficient evidence to support a conclusion of noncompliance)?
  6. What is the number of Section 303(b) closures (investigative determination that evidence supports a conclusion of noncompliance)?
  7. How does OCR approach complaints about disparity in discipline and disparity in access to high-rigor courses? Please include information about how OCR decides to focus its investigation with respect to individual complaints versus systemic or district-wide concerns.
  8. When does OCR use a disparate impact analysis?
  9. What is the total number of disability rights complaints?
  10. How does OCR determine if a Section 302 should be pursued in the middle of an investigation?
  11. Under what circumstances will OCR continue an investigation if a complainant withdraws a complaint or if a complainant has raised the issue in state or federal court?
  12. What was the rationale for shortening the time that complainants have to provide additional information to OCR?
  13. In what topical areas have recipients of federal financial assistance from the U.S. Department of Education, students, and other stakeholders requested guidance or asked for more clarity from OCR regarding how to be compliant with the laws and regulations enforced by OCR?
  14. What are OCR’s policies and practices related to making letters of finding and resolution agreements publicly available online?
  15. Since the new provisions of the Case Processing Manual have been implemented, what percentage of dismissed complaints were identified as “no longer appropriate for investigation”?

We thank you in advance for providing answers to these questions. We are grateful for the work of the Office of Civil Rights, and we look forward to receiving your response.

Sincerely,