Conservative legal group urges change to education regulations adopted under the previous Administration.
The vast majority of American children attend public elementary and secondary schools. Millions more Americans are pursuing a college degree. These students, young and old, find themselves in educational institutions that fall under the umbrella of federal policies adopted by the Obama Administration.
Some of these Obama-era policies—specifically ones related to transgender students, school discipline, and college sexual assault investigations—need reform, according to a paper recently authored by members of The Federalist Society, a conservative legal advocacy organization. The paper’s authors argue that these Obama Administration policies violate the law.
For example, Title IX of the 1972 Education Act does not authorize the Obama Administration’s policy on transgender students, according to the paper. The paper’s authors—Hans Bader, Linda Chavez, Roger Clegg, Gail Heriot, and Stuart Taylor, Jr.—disagree with regulatory guidance issued by the Obama Department of Education claiming that a student’s gender identity is equal to a student’s sex for the purpose of preventing sex-based discrimination in education. Under President Obama, the Education Department declared that schools would have to treat a male-to-female transgender student the same way they would treat a female student. In addition, schools would have to provide equal opportunities for transgender students to participate in all educational programs and activities.
In response, some students and their families have expressed concern that students of one sex may use restrooms and locker rooms of the opposite sex because of the students’ stated identification with the opposite gender.
Bader and his coauthors argue that the Education Department’s policy unreasonably treats gender identification as covered by regulations prohibiting discrimination based on sex. They claim its interpretation is unreasonable because gender and sex are conceptually distinct, and Title IX only bans sex discrimination, not discrimination based on gender or gender identity.
Further, they argue the Education Department’s guidance limits schools’ ability to handle what is often a delicate matter. In their view, the guidance mandates restroom usage according to a transgender student’s gender identification, leaving no room for such students to use more private, single-user facilities. Bader and his coauthors stress that each transgender student is unique, which cautions against a one-size-fits-all approach from the federal government.
The Federalist Society paper also criticizes Obama-era educational policies about the racial impacts of school disciplinary practices. In a 2014 guidance letter, the Education Department declared that public elementary and secondary schools violate the federal Civil Rights Act if their otherwise race-neutral disciplinary policies “have an unjustified effect of discriminating against students on the basis of race”—that is, if they have a “disparate impact” on students of different races.
According to the Federalist Society paper, the Education Department’s 2014 letter effectively creates school disciplinary quotas based on race that cannot be exceeded—even if minority students in fact exhibit disproportionately more insubordinate behavior. Bader and his coauthors not only criticize the policy as unduly limiting school administrators’ ability to maintain order, but also argue that the Education Department’s disparate impact policy violates the U.S. Constitution, citing court cases holding that racial disparities in school discipline alone do not constitute impermissible racial discrimination.
Bader and his coauthors argue that, in addition to being unconstitutional, the Education Department’s disparate impact regulations create subpar outcomes for students and teachers. To them, the Education Department presents schools with a difficult choice: forsake disciplinary policies that might have been effective, albeit unevenly applied, or employ them such that “some students are not disciplined, and others are, because of race.” The paper’s authors write that either option will result in more disruptive—and possibly violent—classrooms, to the detriment of teachers and students who are eager to learn.
Bader and his coauthors urge Congress to outlaw policies that impose the disparate impact standard on school disciplinary policies. Alternatively, if Congress does not act, they advise the Education Department to issue formal regulations to clarify that school disciplinary policies with disparate racial impacts would not violate the Civil Rights Act.
Finally, Bader and his colleagues criticize the Obama Administration’s regulatory guidance on sexual assault on college campuses. In a 2011 guidance letter sent to colleges receiving federal funds, the Education Department proclaimed that, under its existing anti-sex discrimination regulations, colleges needed to take more assertive measures to investigate sexual assaults and streamline disciplinary proceedings.
Bader and his coauthors take issue with the way the Education Department announced its policy on sexual assault allegations. They recommend that, instead of announcing such a policy via a letter, the Education Department should undertake a formal rulemaking that would “specify procedures that must be used to protect due process rights,” such as the ability for the accused to cross-examine witnesses and their accusers.
The Federalist Society paper proposes additional federal procedures to protect due process rights of accused students, such as the presumption of innocence, a more robust evidentiary burden, and representation by a lawyer. The new procedures could also facilitate criminal investigations of sexual assault, which could provide more equitable outcomes for both alleged victims and accused students.
U.S. Secretary of Education Betsy DeVos appears receptive to reconsidering the three policies Bader and his coauthors single out in their paper. For example, DeVos recently pledged that the Education Department would initiate a rulemaking proceeding on the procedures colleges and universities should use to investigate sexual assault. DeVos has also rescinded the previous Education Department guidance and implemented an interim guidance document that provides greater procedural protections for accused students while the rulemaking process plays out.
The Federalist Society paper is a product of the Society’s Regulatory Transparency Project. The authors of the paper are members of the Project’s Race & Sex Working Group.