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.