A report from the U.S. Education Department reveals that under Barack Obama, complaints to the department’s Office for Civil Rights (OCR) have more than doubled.
— US Dept of Education (@usedgov) December 10, 2016
The report, titled “Securing Equal Educational Opportunity,” shows that in fiscal year 2016 OCR processed 16,720 complaints, more than twice the 6,364 filed in fiscal year 2009.
According to the report’s executive summary:
In FY 2016, the quality and pace of OCR’s enforcement work remained high. OCR received a record-high 16,720 complaints, initiated 13 proactive investigations (called compliance reviews), and resolved 8,625 cases overall, including 1,116 resolutions that secured changes protective of students’ civil rights in schools around the nation…Over the past eight years, the number of complaints OCR received generally rose in several areas, including complaints related to the restraint or seclusion of students with disabilities; harassment based on race, color, or national origin; web accessibility for students with disabilities; and sexual violence.
The document notes that sex discrimination claims made up 46 percent (7,747) of all the complaints filed to OCR in FY 2016. In 2015, 28 percent (2,939) of the complaints were related to sex discrimination.
“The majority of Title IX complaints received this year (more than 6,000) were filed by a single complainant alleging discrimination in schools’ athletics programs,” states the report. “Complaints involving discrimination based on disability status comprised 36 percent (5,936) of all complaints this year; race or national origin discrimination complaints comprised 15 percent (2,439); and age discrimination complaints comprised three per- cent (581).”
Title IX is the portion of the U.S. Education Amendments of 1972 that bars discrimination due to gender, and Title VI refers to discrimination due to race.
— US Dept of Education (@usedgov) December 8, 2016
Hans Bader, a Washington, D.C.-based attorney who has also practiced civil-rights and constitutional law, tells Breitbart News, “The only reason there are more complaints to the Education Department than there used to be is because its Office for Civil Rights has defined perfectly legal practices as illegal.”
Bader recommends the Office for Civil Rights should have its budget cut, rather than increased in the next administration.
“If OCR were not stretching and rewriting the law, it would probably have fewer complaints to process than in years past, and could make do with a smaller budget than it now has,” he says. “The Education Department has illegally dumped an avalanche of new rules and regulations on America’s schools, without even complying with the Administrative Procedure Act’s notice-and-comment requirements.”
“The Education Department’s Office for Civil Rights has defined as violations of statutes such as Title VI (race), Title IX (gender), and the Americans with Disabilities Act things that courts have said do NOT violate these laws,” he continues, explaining that the Obama administration has stretched the definitions of what comprises gender and racial violations.
“OCR defines colorblind school suspension policies as a violation of Title VI (if they have racially “disparate impact”), even though the Supreme Court said in its Sandoval decision that disparate impact does not violate Title VI,” Bader asserts.
In a column at the Daily Caller in 2014, Bader wrote:
The Supreme Court ruled in Alexander v. Sandoval (2001) that disparate impact doesn’t violate Title VI, only “intentional” discrimination does. The Education Department claims that while the Title VI statute itself doesn’t reach disparate impact, regulations under it can and do (an idea that the Supreme Court decision described as “strange” in footnote 6 of its opinion).
Writing at Competitive Enterprise Institute also in 2014, Bader noted that former Attorney General Eric Holder blamed racial disparities in school discipline on “zero-tolerance” policies.
“There are many things wrong with ‘zero-tolerance’ policies, but an increase in racial disparities is not among them,” Bader wrote. “Racial disparities in school suspension rates are almost entirely the result of differing rates of misbehavior within different demographics, not school officials’ racism.”
Bader adds the education department’s expansion of the definition of sexual harassment has contributed further to its significant uptick in filed complaints.
“The Department of Education’s Sexual Harassment Guidance radically expands harassment liability (such as saying colleges have to regulate off-campus conduct, which the courts have said they don’t, in decisions like Roe v. St. Louis Univ. (2014),” Bader states.
He wrote in 2015 at CNSNews.com:
OCR’s 2014 harassment guidance generally imposes liability on institutions even if they correctly discipline those who engage in sexual harassment or sexual assault, if they do not also “prevent its recurrence” and “remedy its effects,” and it warns that even punishing the harasser “likely will not be sufficient” to comply with Title IX.
Bader continues to Breitbart News that, in a February, 2015 letter to Congress, two members of the U.S. Commission on Civil Rights noted that OCR:
…has all too often been willing to define perfectly legal conduct as unlawful. Though OCR may claim to be underfunded, its resources are stretched thin largely because it has so often chosen to address violations it has made up out of thin air. Increasing OCR’s budget would in effect reward the agency for frequently overstepping the law.
“It also is not clear that increases in OCR’s caseload in recent years actually reflect much additional work,” Bader observes. “Former Congressman John Linder has noted that OCR is extremely inefficient in handling its cases.”
Bader emphasizes how the education department’s “official guidance” policies have increased the web of bureaucracy for public schools.
“The compliance problem is exacerbated by the sheer volume of mandates—approximately 2,000 pages of text—and the reality that the Department of Education issues official guidance to amend or clarify its rules at a rate of more than one document per work day,” he notes, explaining:
OCR has pressured colleges and high schools to adopt unconstitutional speech codes. It also has pressured school districts to adopt veiled racial quotas in school discipline. And in sexual harassment cases, it has stacked the deck against accused students, and occasionally forced colleges to reward false allegations. It has done all these things by expanding and essentially rewriting the federal civil-rights laws Title VI and Title IX through uncodified administrative “guidance” and “Dear Colleague” letters.
The U.S. Education Department apparently fears it will be in for “tough times ahead” as the new Trump administration takes over in January, reports the Washington Post.
“Under President Obama, OCR has aggressively stepped up its investigation and enforcement efforts, handling a skyrocketing number of complaints even as the number of its staff has declined,” the report says. “The office also has issued guidance documents that have reshaped expectations for how K-12 schools and colleges handle sexual assault, deal with discipline and accommodate transgender students.”
Current education secretary John B. King said the number of complaints of bullying and harassment has climbed just since Election Day.
“There are too many students of color who feel afraid in school,” he said. “We have an obligation, all of us, to redouble our efforts to intensify our work to ensure we protect the civil rights of all students.”