The Office for Civil Rights's Volatile Power

Here is a question nobody asked Betsy DeVos at her confirmation hearing to become the eleventh secretary of education: Is the U.S. Department of Education a civil-rights agency?  

The last secretary, John King, thinks so. Over 600 education scholars who protested the nomination of DeVos think so, too. In a letter to the Senate, they recalled that the Elementary and Secondary Education Act of 1965, which created the federal role in American schools, is “at its heart a civil-rights law.”

While much of the controversy over the new secretary has focused on school choice and the privatization of public education, the reality is that DeVos will have little power to enact major changes on those fronts because control lies with the state. When it comes to civil rights, however, DeVos and the Department of Education’s Office for Civil Rights (OCR) still possess immense power and responsibility. During her hearing, DeVos was evasive about how she would wield both, promising only to review OCR’s policies should she be confirmed. In a recent interview, she acknowledged that “anti-discrimination issues” require “a federal role,” but, she went on, “I also think there is an opportunity to streamline and simplify a lot of the engagement and involvement the department has had around some of these issues.”

In another interview, DeVos talked about “when we had segregated schools and when we had a time when, you know, girls weren't allowed to have the same kind of sports teams—I mean, there have been important inflection points for the federal government to get involved.” There is strong evidence that school segregation is worse now than it has been for more than 30 years. The Obama administration tackled desegregation; campus sexual violence; harassment against transgender students; and disparities in discipline that made African American students and students with disabilities much more likely to be restrained, secluded, arrested, suspended, or expelled. There was a sense of urgency in the OCR during the Obama years. DeVos sees things differently. Asked if there any remaining issues where the federal government should intervene, DeVos said “I can't think of any now.”

Given this milquetoast response, it was surprising to learn that DeVos raised an objection to Attorney General Jeff Sessions and President Trump’s decision to rescind the Department of Education’s protections of transgender students’ rights. DeVos’s push-back was overridden, and though she could have refused to go along with the administration, in the end, she capitulated, and the acting assistant secretary of civil rights in the Department of Education signed off on the the new guidance. to an audience at the Conservative Political Action Conference a day later, she called the Title IX guidance “a very huge example of the Obama administration’s overreach.” None of this was unexpected—at least, not to anyone familiar with the history of the