The U.S. Department of Education (DOE) is quickly becoming a key agency in the Trump administration’s laser-focused attack on civil rights. So far, Secretary Betsy DeVos has attempted to roll back protections for transgender students, campus sexual assault survivors, and students who claim they were subjected to predatory student loan practices—usually by a for-profit college, of which DeVos is a proponent. Civil rights advocates have pushed back, filing lawsuits challenging and denouncing the department’s drastic reversals of Obama-era education policy.
While those lawsuits work their way through the courts, though, another watchdog has its eye on the DOE specifically and the Trump administration generally: the U.S. Commission on Civil Rights (USCCR).
USCCR, which was created as part of the Civil Rights Act of 1957, was established as an independent, bipartisan, fact-finding federal agency with a mission to “inform the development of national civil rights policy and enhance enforcement of federal civil rights laws.” It exists outside the executive branch and without a cabinet head—unlike the DOE, for example, which is headed by a political appointee and directly reports to the president. Also, unlike the DOE, its chair cannot be fired by the sitting president except for “neglect of duty and malfeasance in office.”
USCCR doesn’t have the power to enforce any civil rights laws. Instead, its job as an agency is to promote and protect civil rights through investigations and reporting on governmental failure or successes. These efforts can then become the basis of either future legislation or litigation, depending on what the commission finds—including detailed reports of where civil rights enforcement has fallen short, with recommendations on how to remedy those failures.
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Catherine Lhamon, who was appointed by President Barack Obama in December 2016 to serve a six-year term, is the commission’s current chair. Through that position, Lhamon can help shape the commission’s agenda and actions. Before serving on the commission, she was the assistant secretary for civil rights at the DOE beginning in 2013. There, Lhamon helped draft the Obama administration’s 2016 Title IX guidance for notifying schools receiving public funds that refusing transgender students access to bathrooms and facilities that align with their gender identity, rather than biological sex, was a violation of federal law.
Lhamon’s background in civil rights enforcement, particularly in the DOE, is turning out to be a crucial firewall to the attacks on student civil rights DeVos has already initiated. In mid-June, the commission voted unanimously to launch a two-year investigation and assessment of the Trump administration’s enforcement of federal civil rights laws, citing, among other concerns, DeVos and her department’s handling of civil rights issues under Title IX of the Education Amendments Act of 1972.
“The commission’s charge is to be the nation’s eyes and ears about federal civil rights issues that range from voting rights, to discrimination on the basis of race, sex, national origin, religion, disability, age, and also access to justice and the courts,” Lhamon explained to Rewire in an interview in June following USCCR’s announced two-year review.
One of DeVos’ first acts as education secretary was, along with the Justice Department, to roll back the Obama-era Title IX guidance surrounding transgender student rights that Lhamon had helped draft.
“What the Department of Justice said when they withdrew [the guidance document on transgender student rights] was that there had been insufficient legal analysis, and so they wanted to take a look at the issue some more,” Lhamon said.
“I take very serious issue with that,” she said. “That could not be further from the truth. I and my colleagues in the Department of Education and the Department of Justice filed amicus briefs in the Gavin Grimm case both at the Supreme Court and the Fourth Circuit explaining the detailed legal analysis that was required and the basis for the guidance itself.”
Rolling back the Title IX guidance was just the beginning. Shortly afterward, the Trump administration quietly began to stop investigating claims by transgender students that their civil rights were being violated at school and to drop ongoing litigation involving those districts the DOE had previously found to be in violation of Title IX in their treatment of transgender students.
Attorneys in the Trump administration “have taken positions in court to withdraw support for students in ongoing litigation for transgender students,” said Lhamon. “It’s terrible.”
According to Lhamon, this includes a complaint filed by a 12 year-old student.
“The district has been harassing her since she was in kindergarten, deliberately misgendering her, deliberately calling her her old name, having an adult follow her to find out which bathroom she uses. They require the students to line up by ‘boys and girls‘ in class and they give her no choice,” said Lhamon.
The DOE, under the Obama administration, had found this student was discriminated against and began legal proceedings against the school district. The Trump administration reversed course completely in this case; not only did it withdraw the findings that this behavior amounted to Title IX violations, it withdrew the case altogether, despite existing court orders in place to try and remedy the discriminatory acts.
What happens next for those students’ claims is not entirely clear.
“I do not understand this,” said Lhamon. “They do not have jurisdiction to do what they have done. It’s harmful to students. It’s harmful to the students in the particular cases and it is harmful to every student in the United States because what they have now communicated is that the Office for Civil Rights is not the office for all civil rights. It is only the office for civil rights that they at this moment chose to enforce.”
“It is not within their discretion and it is appalling,” she said.
USCCR’s announcement that it would be closely watching the Trump administration apparently did nothing to deter officials from continuing their attacks on student civil rights. In late June, Candice Jackson, acting assistant secretary of education for civil rights, announced the Trump administration would seek to reverse an Obama-era policy that made public a list of colleges and universities under investigation for sexual assault-related violations of Title IX.
DeVos also announced in late June that she would delay implementation of an Obama-era rule designed to protect students from predatory lending practices. DeVos characterized this as part of a broader “regulatory reset” of policies aimed at curbing abusive student loan practices, particularly by for-profit colleges. In response, 18 states and the District of Columbia sued the administration alleging that the Trump administration has no legal basis to delay implementation of the rule. The lawsuit requests the federal courts order the administration allow the rule to take effect as finalized. The court has not yet ruled on that request.
If ever the need existed for independent agencies like USCCR, it is now. President Trump has so far successfully packed agencies like the Departments of Education; Justice; Health and Human Services; and Labor with conservative extremists who have shown little interest in protecting, let alone advancing, civil rights for marginalized people in this country. In two years, the commission will release the results of its investigation and assessment of civil rights enforcement under the Trump administration. Although it may not affect this administration’s behavior, it may help to shape lawsuits or legislation to prevent similar behavior in the future. Because it’s safe to assume the report won’t bring good news.