For the eight years of the Obama administration, federal Education Department officials placed a huge emphasis on protecting the civil rights of America’s schoolchildren — a legacy Catherine Lhamon says is at risk of collapse under President Trump.
A prolific attorney, Lhamon became President Barack Obama’s second assistant secretary for civil rights at the Education Department in 2013, helping to implement and enforce some of the department’s most aggressive policies — including on transgender student rights, disparate impact in school discipline, and sexual harassment and violence in K-12 schools and on college campuses. On her watch, the number of complaints to the department’s Office for Civil Rights doubled, reaching a record high
of 16,720 in 2016. The administration’s policies were controversial and drew several lawsuits — including over a guidance letter
that set a “preponderance of the evidence” standard for proof in sexual-assault cases, and an interpretation of Title IX
that included gender identity.
In December, as his administration was winding down, Obama appointed Lhamon to the U.S. Commission on Civil Rights. The commission — where she serves as chairwoman — is now investigating
the Trump administration’s civil rights enforcement after memos limiting the scope of civil rights investigations in his Education Department were leaked
to the press.
In an interview with The 74, Lhamon discusses her civil rights work and why, with Trump at the helm, she’s now doubling down. The interview was edited for length and clarity.
The 74: You worked for Public Counsel, a pro bono law firm in California, and for the ACLU in Southern California before joining the Education Department. What motivates your civil rights work?
Lhamon: I spent 17 years litigating civil rights issues before coming to government, so I have spent a lot of time in California, principally, thinking about the ways that harm might be visited on people and what we need governments to do to protect people from those kinds of harms and how to make people safe. It was eye-opening and incredibly my honor to be able to do that same work from a federal perch, affecting more people and protecting more rights.
I brought to the work my own experience growing up as a black girl in California with a brother who has a disability, thinking about those experiences in schools. I also brought to the work the experience of clients whom I represented before coming, thinking about what they needed and what they wanted, and how best government could respond to those kinds of harms.
What motivates me in the work is love of civil rights, love of people, and deep care for satisfying the promises that Congress has made to all of us.
The Obama administration had a very active Office for Civil Rights that took strong stands on a range of issues, including bathroom rights for transgender students, disparate impact in student discipline, and sexual violence in schools and on college campuses. Why was such a strong stand necessary, and how do you respond to people who say the office was overzealous?
The office absolutely was not, and has not been, overzealous. Congress promised every student in the nation, more than 60 years ago, that no student would suffer discrimination in schools that receive federal funds. That is an aggressive promise and it is an aggressive charge, and the office’s job is to be aggressive defending that promise for every student. Not taking that role seriously would be distrustful to Congress, disrespectful to the students who rely on the office.
On the questions of why we took on the issues that we did, we took them on because they were affecting students who came to us and asked for help, and they were affecting schools, educators, administrators, teachers who came to us asking for help about how to best serve all students in their charge. There are transgender students who are required to attend school every day, and their teachers and their school administrators need answers about what the law requires for them in school. Likewise, there are students who attend school every day who are subject to sexual harassment and sexual violence, and they and their schools need answers for what legal protections are provided to them.
It is astonishing to me, 45 years after Congress promised that no student shall suffer discrimination based on sex in school, that we still, as a country, are questioning whether that promise extends to the harm that is sexual harassment. It’s not, in fact, an open question — the United States Supreme Court has answered it many times; the Office for Civil Rights has answered it many times consistently over many decades — but we didn’t see schools responding as they should have and as the law demands that they do. It was important to the Obama administration, it was important to Office for Civil Rights, it was important to me, to make sure that students in my charge actually receive the education that they’re entitled to.
Likewise for school discipline. It was important for me to make sure that students actually can attend school in a nondiscriminatory environment without racial prejudice and implicit bias that can infect the ways that they are respected by their peers, the way they are respected by their educators and their administrators in school, and that students can actually stay in school rather than being pushed out.
Many high-profile policies and decisions in the Obama Education Department came through “Dear Colleague” letters that largely interpreted existing laws, including Title IX and its protections for transgender students. Is there any way that the administration could have handled those policy changes that would have provided them with a longer shelf life?
I hope that the decisions we made do retain a long shelf life. It is my belief that they should — that is what the law demands, and it is my expectation that the Office for Civil Rights will continue to enforce the way that we did. I don’t know how we could have done the work better, differently, or more than we did. We were working at breakneck speed trying to achieve as much justice as was possible with the time that we had. And looking back, with the benefit now of six months’ time to reflect, I continue to not be able to think of another way to have done more good than we did.
Complaints about sexual assault in K-12 schools increased after the 2011 “Dear Colleague” letter that established a lower standard of proof in disciplinary hearings. What do you think contributed to that increase, and how did Obama administration policies affect the way K-12 schools have responded?
The Office for Civil Rights did not lower the standard for proof applicable in administrative proceedings related to sexual harassment and sexual violence in schools. The Office for Civil Rights did identify the legal standard applicable to satisfy the Title IX statute and regulations, and that is the standard that the vast majority of the schools that had identified a standard in advance were already using. That’s because it is the standard that the Supreme Court has identified, that lower courts have identified, and is the typical standard to balance benefits and burdens among a complainant and the accused person in that context.
We saw an increase in complaints related to sexual harassment and sexual violence, both in K-12 and in institutions of higher education, and that is, I believe, because there was greater information about the availability of the Office for Civil Rights as an avenue for relief. Also, there was a galvanizing movement around the country of securing change on those topics, and so it prompted more people to feel safe coming forward. Over too many decades, sexual harassment and sexual violence have been categories of shame for people who have experienced them, and it has been hard for them to come forward. I am grateful more people feel like they can talk about what has happened to them and be part of a change so that other people don’t have to suffer that kind of harm. I don’t think it was because there was an increase in that kind of harm in schools across the country.
The way these issues play out in K-12 schools has not received nearly the same level of attention as sexual assaults on college campuses.
It hasn’t, and that’s enormously frustrating to me — as the former chief civil rights enforcer in the nation’s schools, as a mom of two little girls who are in elementary and middle school, and as a reader of the kinds of investigations that the office engaged in. The facts can be devastating for our younger students.
Taking one example that predates my time, there was a Texas school district in which a young woman was raped in her band room by another student, and she reported that rape to her band teacher, and her school district disciplined her for lewd conduct for having had sex at school, rather than recognizing that she had been raped. She and her mother went to the district and said, “You’re misunderstanding, she reported a rape, this was not consensual, this was not something she wanted to happen, she’s looking for help,” and the district doubled down on its penalty to her, ultimately requiring her to see her attacker more often than she would have seen him had she not reported, because she and the attacker were sent to an alternative school in which she saw him every day.
The district would not change its penalty until the Office for Civil Rights clarified for them that they were violating the student’s civil rights and required that the district change their policies, change their practices, and pay for counseling for that young woman.
In another resolution, we had a young woman who was gang-raped on campus by other students when she was coming home from her prom, and we hoped that was an outlier, that the facts in our investigation would not yield information about other rapes. But instead, we found out about multiple other rapes in middle schools and high schools in that district in that same year, and we learned when we spoke to administrators that administrators knew about catcalling, groping, material sexual harassment that was routine in the middle and high schools in the district.
It’s a heavily Latino district, and we asked the administrators why, if they knew, they hadn’t stepped in, hadn’t taken action to correct that behavior. And the response we got was, “That’s their urban culture.” It’s not very coded about very low expectations for Latina girls, and as I mentioned, I’m the mother of a middle school girl. It’s not acceptable for my daughter, it’s not acceptable for anybody’s daughter, so our resolution with that district was to clarify the law for them, to require them to change their practices, but also that they bring in the community of parents in that district to be part of a network that would work with the district in change and in appropriate expectations for student behaviors to make sure all students could be safe on that campus moving forward.
Both of those examples speak to how far we have not come yet, as a country, in terms of what it is we expect the educational experience to be for all of our students, and the level of harassment and discrimination that we believe is just a part of life, just a part of growing up, for some people.
OCR has limited staff and limited resources, so its scope of investigations is obviously limited. You received a huge influx of complaints in recent years and struggled to investigate everything. How can OCR be so thorough but also more efficient?
It’s very, very challenging to do the work the way the work needs to be done, and the way that students and schools deserve for it to be done with the limited resources that OCR had. The staffing had fallen to an all-time low
, and the complaint volume had risen to an all-time high by the end of my time at OCR. We were deeply concerned every day about being able to do the work as the work must be done.
You can’t really cut corners when you are evaluating the dignity and respect with which students are treated at school, and the kinds of allegations that came into OCR. It was important to the students, it was important to the schools, to get to the actual facts that had taken place and then to apply the law to those facts. That work requires talking to people, reviewing documents, assessing credibility, reviewing policies, sometimes going back and asking more questions.
That’s a time-consuming, detailed process that every single student who came to us deserved to have done thoroughly and appropriately. It was challenging to complete the work on time, it was challenging to complete the work effectively, but when the penalty for the finding of a legal violation is withholding of federal funds, it is not fair to anyone not to be absolutely certain that that legal finding is both supported and appropriate.
How do you think the changes outlined in the Trump administration memos will affect civil rights enforcement in schools?
The memos that have come out plan to narrow the scope of the investigations and to narrow the lens through which the Office for Civil Rights is examining civil rights harms. I think that’s dangerous. I think that’s inconsistent with the office’s statutory and regulatory charge, which is to investigate, quote, “whenever” the office has information that discrimination may have occurred. It does a disservice to students and to schools not to examine, consistent with the staff expertise, what may or may not have taken place.
I’m deeply worried about the kinds of discrimination that may be allowed to proliferate if there’s not an effective and meaningful civil rights backstop, which is what Congress has promised.
One of the specific guidelines that the Trump administration revoked is one you wrote in regard to transgender student protections, which said schools should allow students to use bathroom facilities that correspond with their gender identities. How do you interpret that policy shift, and how might that affect students?
I am at a total loss to understand the policy shift, because not only did the explanation for the withdrawal of the guidance not then say what to do instead, it also is completely inconsistent with the Title IX doctrine as it already exists both from the Supreme Court and from the lower courts. In fact, the 7th Circuit ruled after that guidance was withdrawn and ruled that the guidance was exactly correct, and it is exactly what Title IX demands.
But the Office for Civil Rights has ignored that ruling also and issued an internal set of instructions that permits staff not to proceed with respect to bathroom access for transgender students, but doesn’t tell them what to do instead. The bathroom question never was just about a bathroom. It is about who that child is at school and how that child will be perceived and seen.
As one example, one of the investigations we had at the Office for Civil Rights was on behalf of a little girl who is transgender, whose school requires the students to stand up every day and line up in lines, boys vs. girls, to go to the bathroom, beginning in kindergarten. Every day that little girl had to make a choice about which line to get in, and was outing herself one way or another, whichever line she got in. If she’s standing in the line where she doesn’t look like the boys, then the other kids are going to ask her, “Well, why are you in this line?” If she’s standing in the line with the girls, then the teacher or school administrator might ask her, “Why are you in this line?”
Ultimately, the teachers followed her around to find out which bathroom she would go to, meaning they were assigning adults to take time away from instruction to check on which bathroom this little girl was using, sending her a message that “You are not the same as other people, that you are not welcome here, and that where you pee is more important than your reading, writing, arithmetic learning.”
That’s exactly the wrong message from schools, and it is old-style, ugly discrimination that I hoped that we were far past as a country.
The U.S. Commission on Civil Rights, which you chair, recently voted to investigate civil rights enforcement under Trump. What specific education issues do you think that investigation should center on?
The investigation is part of our core mission at the U.S. Commission on Civil Rights to assess the efficacy of federal civil rights enforcement across agencies. I do, my fellow commissioners, the majority of us, have very serious concerns about the Department of Education, among other departments, that include budget proposals and repeated statements from the education secretary that do not commit to enforcing federal civil rights laws, and also to the choices that the office has made about the ways it’s going to move forward with its enforcement.
The investigation will include taking a look at budgets and management practices within each of the agencies, including the Department of Education, to assess whether those management practices are sufficient to deliver the scope of enforcement necessary compared to the volume of complaints and investigations that the offices take on. And then to examine the efficacy of actual resolutions in the offices to determine whether they are consistent with the statutory and regulatory charge, and they are sufficient to address the civil rights harms identified.
You helped implement and enforce many of the policies over which the Trump Education Department is now being investigated. What role will you play in investigating changes to Education Department policies, and how would you respond to critics who may see this as a conflict of interest?
It is not a conflict of interest because of the status of our ethics laws, and I checked that very carefully before I came to the commission from the Department of Education, and I am confident that it is appropriate for us to engage in this review this way.
The reality is that the staff of the commission conduct the analysis and prepare a report. I and my fellow commissioners will ask questions, participate in the review, participate in the public briefing, and look forward to receiving the information that the commission staff prepares in generating its review of the Department of Education and the other departments. But it is the job of the commission, and of all the commissioners, to make our collective assessment about the satisfaction of civil rights enforcement across the agencies. I have a particular window into the Department of Education from having been there, and I am one among eight perspectives that will be expressed when this review is done.
The commission’s announcement of the investigation talks about cuts to the Office for Civil Rights in Trump’s proposed budget. How do you believe the cuts will affect the office’s performance?
What we have is the president’s proposed budget. I have no expectation that Congress will actually appropriate funds consistent with that budget, and in fact I have heard bipartisan commentary from members of Congress that that budget is dead on arrival.
I think the budget is an important marker of the priorities and lack of priorities that this administration has articulated for civil rights in the Department of Education and across agencies. My deep concern comes from knowing how many more staff the office needs than would be provided even under a flat budget, and in fact the budget proposal, which represents a slight cut for the Office for Civil Rights based on what they have now, also plans to lose in excess of 40 staff members and projects that after that staff loss — the staff will carry about 42 cases per person, which is an untenable caseload. That’s not required with the budget that the proposal has identified; in fact, the office would not need to lose that many staff, so that also reflects a set of choices about how the dollars will be spent that is not prioritizing staff over other issues within the Office for Civil Rights, and that’s dangerous for civil rights enforcement as well.
Moving forward, what issues do you think are most important for people to keep an eye on?
All of us need to be watching the degree to which civil rights are prioritized across government. We have lived a 60-year national consensus that there needs to be a federal backstop for ensuring meaningful civil rights satisfaction across all walks of life. We need that because our history has taught us time and time again that the impulse to discriminate is strong, and that there is a need to make sure there is someone who will say, “This is a line that we don’t cross, and we don’t go any further than this.”
Losing that line, losing the expectation that there is this federal backstop, is dangerous. I described a couple of cases of times when local jurisdictions needed to understand what the federal obligations were and needed the federal government to help them come into compliance. Those examples, as appalling as they are, are not alone. In my time at the Office for Civil Rights, I saw harms that I did expect and that I knew that we needed to look for, and we addressed those as well. And I saw categories of harms that never in my wildest dreams I would have imagined anyone would visit on another human being in schools that were devastating.
If we hadn’t been there, those students would continue to be harmed, and their peer students in their schools would continue to learn that that’s an OK way to treat another human being. I don’t want to live in a country where that’s what we communicate in school. I don’t want to live in a country where that’s what we communicate in any walk of life. All of us need to be deeply concerned about the loss of meaningful federal civil rights enforcement because of what it means for each of us in terms of our ability to be respected, our ability to be safe, and our ability to be the communities that we want to be.