The Biden Administration: Civil Rights Guidance and Enforcement

As a lobbyist for AASA for most of the Obama Administration, I can state that one of the most frustrating aspects of working with the Obama/Duncan Administration was their penchant for issuing prescriptive guidance on a variety of issues impacting schools and students. If you peruse the Leading Edge blog from that era, you will see a re-statement of the following advice on federal guidance repeatedly mentioned in our posts: guidance is not law.

The Trump Administration also used guidance to try and dictate rather than clarify their policy views on various K-12 issues. Initially, they also expended effort to quickly undo much of the K-12 guidance that the Obama Administration issued that was particularly controversial or viewed negatively by Republicans.

It should be no surprise then that President-Elect Biden has already announced his intention to re-instate various Obama-era guidance documents. He will take the opportunity, as his predecessors have, to use guidance to try and pressure districts to move quickly in adopting practices and policies that they are not required to abide by under Congressional statute, but that they should for the sake of civil rights enforcement.

Specifically, Biden has already stated that he plans to:

Reinstate Title IX protections for transgender students that were eliminated by Trump administration

• Reinstate the use of disparate impact theory in determining racial discrimination in school discipline,
• Reinstate guidance on responding to sexual assault and harassment at schools
• Reinstate guidance on voluntary school integration efforts

AASA does not have a position on the reinstitution of these guidance documents; we know some members welcome their return, while others find them to be totally unnecessary or unhelpful in light of their local policies or state laws, which may be far more comprehensive and prescriptive on these issues then the federal guidance documents. For example, in 2018 we did a deep dive into the impact of the 2014 Obama-era discipline guidance and found that the 2014 guidance had a very limited impact on changing district discipline policies and practices. Of the close to one-thousand members we surveyed only 16% said they modified their discipline policies because of the 2014 guidance.

What we also learned from that specific report and subsequent conversations with our members is that civil rights enforcement practices by the U.S. Department of Education was a much larger, more powerful lever in changing district policy and practice. The Biden Administration has also vowed to dramatically beef up OCR enforcement and we anticipate that there will be a return to the aggressive enforcement standards and processes that were in place during the Obama Administration. The enforcement practices will likely play a much larger role in pressuring districts to adopt guidance they would otherwise ignore than the guidance documents themselves.