005: You'll miss your Office for Civil Rights when it's gone

Stephanie and Zac talk with guests Katy Joseph and Sam Ames - the two most recent former chiefs of staff for the U.S. Department of Education's Office for Civil Rights (OCR). They discuss OCR's origins, work, and possible future with a 50% reduction in staff and ever-increasing caseload.

Transcript

Zac: 0:00

Hi, I'm Zach Chase.

Stephanie: 0:16

And I'm Stephanie Melville. Germ-free, back in full voice after what you may have noticed was my jazz singer era in our last few episodes.

Zac: 0:24

And welcome to Academic Distinctions, a podcast to make sense of American education. Today we'll be making sense of the U.S. Department of Education's Office for Civil Rights, or OCR, which was part of the department since its founding in 1980.

Stephanie: 0:39

OCR's core mission is to ensure students receive an education free from discrimination. They achieve this by enforcing five key federal anti-discrimination statutes.

Zac: 0:50

These are... Title VI of the Civil Rights Act of 1964, addressing race, color, or national origin discrimination. Title IX of the Education Amendments of 1972, prohibiting sex discrimination, including sexual orientation and gender identity. And we'll work to set the record straight, so to speak, a little later on that one. Section 504 of the Rehabilitation Act of 1973. And Title II of the Americans with Disabilities Act of 1990, both protecting against disability discrimination. And finally, the Age Discrimination Act of 1975. That was a new one for me.

Stephanie: 1:26

Under Title II of the ADA, the Department of Education is specifically designated for civil rights enforcement for elementary, secondary, higher education, vocational education, and libraries. OCR also handles civil rights within other Department of Education programs like the Individuals with Disabilities Act and the Magnet Schools Assistance Program.

Zac: 1:48

Their authority is broad, covering virtually every institution receiving financial assistance from the Department of Education. This includes all state education and rehabilitation agencies, school districts, post-secondary institutions, and thousands of private schools, libraries, museums, and even correctional facilities.

Stephanie: 2:07

So how do they enforce these critical protections? The majority of OCR staff and resources are dedicated to complaint investigations and compliance reviews. They also monitor corrective actions plans, develop policy, and provide technical assistance.

Zac: 2:23

Throughout the process and required by law, OCR first seeks voluntary compliance. If that's not achieved and a violation has been found, the office can terminate federal financial assistance or refer the matter to the U.S. Department of Justice for relief in federal court.

Stephanie: 2:39

OCR's work has had a profound impact. Their enforcement of Title VI led many Southern districts to desegregate without federal court intervention, at least until recently. Research also shows Title IX's introduction significantly increased women's educational attainment and labor market participation.

Zac: 2:58

However, OCR faces significant challenges. In fiscal year 2024, the office logged over 22,000 complaints, more than double the number from a decade before. Despite this exploding caseload, their annual budget has remained flat. This underfunding often leads to investigations taking years to resolve.

Stephanie: 3:19

It's a critical office operating under immense pressure, and its impact on ensuring equitable educational opportunities for all students is undeniable.

Zac: 3:27

Today, we will be talking with the two most recent chiefs of staff, Sam Ames and Katie Joseph, and discussing how OCR's important work is being undone. Sam, Katie, welcome to Academic Distinctions. We're so glad you made the time to talk to us. How are you feeling about all of the years of your life you spent in OCR being frittered away?

Sam: 4:11

Yeah. Totally fine. Living the

Zac: 4:15

dream.

Katy: 4:16

Totally fine. Just a light opening question. Yeah.

Zac: 4:20

Well, let me lighten it up a little bit. Title IX. Okay. So in the kind of waning moments of the Biden administration, OCR released Title IX regulations. So as we covered in the opener, OCR is responsible for the kind of enforcement of Title IX. And so there's the law, which we folks know about. But the law also says kind of the Department of Education will figure out what this all means, kind of the application side of things. And that's true across the federal government, right? Congress will often write... A law that is very broad and say the specific agency gets to decide what this means in practice. So Ed finally released, I say finally because it took some time, some Title IX regulations. What was different or shifted with those new regulations?

Sam: 5:09

I am happy to start this one. Poor Katy got there just in time to get yelled at about that. But I got to be there the whole time that they were working on the actual thing. The regulations actually included a whole bunch of stuff for as much as the headlines focused on exactly one of those things. It heightened protections for survivors of sexual assault. It protected them from retaliation. It made clear that sex-based harassment is sex discrimination, things that are true in a lot of areas of law. And then, obviously, maybe the most Infamous part of it clarifies doesn't make new law, but clarifies that discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity in line with much of the rest of the federal law.

Zac: 5:54

So you say that, like, of course, this makes sense. Can you help us understand, like, why that makes sense in how we think about sex and sexual orientation and gender identity and all of those pieces? Why that is just like, no, no, no, this isn't. like earth shattering in how the regulations were laid out.

Sam: 6:15

I mean, to get real nerdy about this, sex was interpreted to include sexual orientation and gender identity, even by the last Trump administration under their Title IX regulations. So this, in many ways, hasn't been super controversial. The Supreme Court did enshrine it into law. And what they said was in the employment discrimination context, if you are discriminating against people somebody because they're transgender. If you're discriminating against someone because they're gay or bisexual, you are by default discriminating on the basis of sex.

Katy: 6:48

So there are a few pieces there that I think it's helpful for folks who are watching the Title IX compliance process from the outside to understand. So there's Title IX, the law, which is very short and straightforward. Discrimination on the basis of sex is prohibited in educational environments.

Zac: 7:05

Done.

Katy: 7:05

Then that's it. Yes, we like it. We believe in it. So it shall be done. So what happens on the agency side, though, are these rules that get into the nitty gritty of what that actually looks like. And this is what schools and other recipients of federal funding are looking to to understand how they can be in compliance with Title IX. So this can get into the specifics of requirements for Title IX officers, training that may or may not be provided to school staff, what you should do as a K-12 school or college or university when a student brings forward a complaint of sex harassment or discrimination. So those are the rules and regulations. And then there's also guidance that the Office for Civil Rights provides. puts out that is responsive to specific concerns. So that guidance isn't legally binding. But again, it's intended to be responsive to what schools are seeing to make sure that they can continue to abide by the law.

Zac: 8:07

Laws tend to be in a pretty legalistic kind of language. Regulations tend to also be in legalistic language. And so the guidance is more human friendly, I think is how I tend to think about it.

Katy: 8:21

Totally, totally.

Zac: 8:23

Lawyers do love talking to other lawyers.

Katy: 8:25

Well,

Zac: 8:26

you went to school a lot for it, so that makes sense. So we don't need to re-enter into all this. There's plenty that folks can read about this. I think I would question, as you both think through what gets talked about In reference to Title IX regulations, what's something that gets missed or that folks don't talk about that you think, oh, no, actually, this was a really important piece that got lost in the kind of sensationalizing of, you know, who people are?

Katy: 8:56

What I want to make sure that schools and community members are asking right now is how do we separate the signal from the noise? How do we keep a focus on what the law actually is, as opposed to what the president is saying he wants it to be? And how do we make sure not only are we doing the bare minimum to provide for our students, but how are we going above and beyond to make sure that they can be safe and thrive at school?

Stephanie: 9:26

I really like that. Sorry, that just gave me goosebumps. The bare minimum of keeping people safe, especially when it comes to schools. So many students, for so many students, school is a safer place than anywhere else they could be seven days a week. And just to think about how some of these protections are being dismantled and creating a lesser safe environment. Sorry.

Zac: 10:02

This is going to be an episode with a lot of heavy sighing.

Sam: 10:05

It is. That's what we're here for, bring the party.

Zac: 10:08

So how can we keep kids safe? Perhaps the thing that got lost in the shuffle. I think that's a great point, Katie. Sam, anything to add?

Sam: 10:16

I wish that people were asking... what the number of these cases actually were. As a trans person, I wish that people were asking how many of these cases are actually about trans students compared to the number of headlines, because the truth is a minority of sex harassment and discrimination complaints are about sexual orientation and gender identity. And if we're going to take the big headlines, even within that, a minority of those are about sports. Even when it's about sports, it's not what's in the headlines, right? Out of like over 500,000 athletes competing at the college level, the number who identify as transgender is less than 10. You can count that on two hands. No number, less than 10 student athletes at the collegiate level are competing. Almost always more. Out of almost, out of over 500,000. Yeah. Out of

Stephanie: 11:08

half a million, we've got- Half a million. 10.

Zac: 11:11

Well, I just want to stop for a minute and say that's probably– we can beat up on this issue because we are talking about such a small number of people. Yes. Yes, absolutely. And so it is– unless you have a strong group of allies or you have a strong group of folks who believe that equal means equal for all people, that small group– 10 folks, right? Like those 10– Folks are focusing on going to college. They're focused on playing their sport. They're focused on working. They don't have the megaphone or the pulpit to fight back. So I would say that from a political angle and the politicalization of this issue, it's way easier to pick on this really small group as we have seen throughout all of human history than it is to kind of pick a fight with a larger group.

Katy: 12:06

And if I can, as I said earlier, Just a moment ago on that point, as we're thinking about protection specifically for trans and intersex students, when we make students within those groups less safe, we make schools less safe for other students as well. Towards the end of my time with OCR, we had a resolution agreement with a school where a middle school cis girl was rarely harassed just trying to go to the bathroom because she dressed in an androgynous way. She had short hair and she was six feet tall. And imagine what it's like being six feet tall as a girl in middle school already. But because of the way that she looked and the way that she dressed, she was being bullied by her classmates. And it was a Title IX issue. It gets into the sex stereotyping question. And Schools need to be taking this seriously, both in terms of how they're protecting and ensuring that trans and intersex students can thrive and also others who may not conform to a strict binary.

Zac: 13:13

I'm going to pause for a second just for folks who might be listening who are kind of new to this particular conversation. Katie, can you give us a definition of cis?

Katy: 13:23

Absolutely. So people who are cis identify with the sex that they were assigned at birth. People who are trans do not identify with the sex that they were assigned at birth.

Sam: 13:35

And I appreciate Katie naming this case. It is so much more common for that to be the case. The bulk of Title IX cases that involve sexual orientation or gender identity aren't sports. They're not any of this. They're harassment cases. and bullying. There was one case in 2023 that we were able to come to resolution with in Wisconsin, where the bullying of a trans student had gotten so bad with people bumping them in the hallway, using slurs, intentionally using the wrong pronouns. This school, It got so severe. The school told this kid's parents that they could not protect them in school and so would need to send them home for virtual schooling for the bulk of their education, which it's kind of the definition of an unequal education, right? That kind of bullying, that is what it is. And as we are having these policy debates, it is more and more following these policy debates. And in the states where a lot of this was happening up until recently, the Washington Post did a study last year, I think, finding that in states where these anti-LGBTQ policies passed, hate crimes in schools quadrupled. Kids are listening to what is going on and they are emulating it.

Zac: 14:55

Well, luckily, the Office for Civil Rights is there. This is my segue to take care of things. I want to root things in Title IX, I think, because that is a good start to the conversation to say, this is, this is an example of how OCR is charged with keeping things, keeping kids safe, um, keeping students safe, right? We know that it's, uh, PK through, through higher ed. So we, um, had our former colleague Megan Whitaker on. Um, she helped us think through the skinny budget and its proposal for what could happen with IDEA. Um, And one of the pieces that she brought up was that about half of OCR complaints concern the civil rights of students with disabilities. So I think to the point that you've both made, the thing that is getting the headlines is not really where the bulk of OCR's time is spent. Half, like 50% in the intro, 22,000 complaints. That's 11,000, give or take 1,000 complaints for the civil rights of students with disabilities.

Katy: 16:03

So awareness of what the Office for Civil Rights does and the service that they provide in enforcing civil rights laws certainly increased during that period. There were certainly incidents over the course of my time with the Office for Civil Rights where we saw increases in a certain type complaint, and at times they would be triggered by external events. So for instance, after the Hamas attacks in Israel on October 7th, 2023, OCR did see a notable increase in complaints related to shared ancestry discrimination. And shared ancestry is a form of discrimination prohibited under Title VI race, color, national origin discrimination, and it can include hate and harassment that's directed toward individuals on the basis of their Jewish, Muslim, Arab, Israeli, Palestinian, or other shared ancestry or national origin. So we saw a number of complaints that came in on the basis of discrimination and harassment against students of all of those identities and more. And it meant that the Office for Civil Rights leaned into established and deepening relationships with those communities to make sure that we were able to offer more guidance than ever before around protections for students on the basis of shared ancestry and to do more investigations in a similar period of time related to those types of discrimination.

Zac: 17:38

When that flat funding was flowing like milk and honey, how many folks were handling these cases?

Sam: 17:48

It was a little, the staffing goes back and forth naturally, but it's generally around 560 people. And it's over regions all across the country, or at least was when they cut OCR's budget in half. They didn't just cut the budget in half, they cut the number of regions in half. So they actually eliminated half of the regional offices. And whereas before, our incredibly, incredibly hardworking staff was working overtime in impossible caseloads, 40, 50, 60 per people caseloads. Now they are doing that twice over. For a little perspective, a manageable caseload is somewhere between 18 and 20.

Zac: 18:28

What's a goal for the timeline from filing of complaint to decision and resolution? What's a gold standard for for that timeline?

Katy: 18:40

OCR always aims for 180 days between opening the case and coming to resolution. And so the process is really intended to be curative, not punitive. Once an investigation is opened into a school, the goal there is to seek voluntary compliance with whatever law there are concerns about. So sometimes it doesn't take 180 days because the school district says, you know what, you're right, we could be doing better. And here's what we're going to do under this agreement to get there. Sometimes it takes a lot longer because schools are not as willing to participate. At the end of the day, it is a federal government agency coming in and doing an investigation into something that a school has claimed is accused of doing wrong.

Sam: 19:26

Okay. Can I pick up? Sorry, go ahead. No, no, go pick up. Can I pick up on a thing you said about voluntary compliance?

Zac: 19:35

Sounds fantastic.

Stephanie: 19:36

So

Sam: 19:39

I realize, again, this is getting a little bit in the weeds, but it's really important right now because in the headlines constantly right now is the Trump administration is going to take away the federal funding of X school, of Harvard, of Columbia, of any number of schools. When you say voluntary compliance, that is a term of art in the statute, by which I mean there is actually a statutory obligation for OCR before starting any of the processes to even talk about taking away federal funds. They are statutorily required to seek voluntary compliance, to seek a resolution voluntarily with the school district, the school, the university, whatever it is. After that, if after every effort from both side, you cannot get to a place with voluntary compliance, then every so often, very rarely, the next steps would be taken. Because like Katie said, this is not meant to be an adversarial process. It is meant to be in the best interest of students. So when we're talking now about immediately going to taking away federal funds, that's not legal. What is happening is not legal. And it's also outside the intention of this law.

Zac: 20:54

Just had a heavy sigh for a minute. Sorry, I know. We keep

Sam: 21:00

causing

Zac: 21:00

you to make the heavy

Sam: 21:01

sighs.

Zac: 21:02

That's all right. You should have been here when we learned about the SCOTUS decisions.

Stephanie: 21:07

I have two questions about what, Katie, you were saying. Number one, why do you think we have so many more people complaints this year than in years past? And were there patterns to it? Did it uptick closer to the election? Or was it just consistently higher this year than other years because things are what they are? What do you think? So

Katy: 21:39

under the Biden administration compared to the first Trump administration, overall, we saw a 64% increase in complaints coming into OCR. That could be because complainants have more faith in OCR to do the work of enforcing civil rights law. It could be because there were very intentional efforts made to increase awareness of what OCR does to improve the complaint process for families and community members to actually be able to submit complaints. And because under the Biden administration, we spent a lot of time offering free training and technical assistance and community engagement to make sure that folks knew how to find us and building trust over time so that if and when something happened in their school or their district, they knew that they could come to OCR. It also may be that there was an increase in certain areas or at certain times of discrimination around particular themes. So, for instance, after October 7, 2023, OCR did see an increase of complaints related to shared ancestry, including anti-Semitism, anti-Arab, anti-Muslim, Palestinian, as well as harassment of students who are Middle Eastern, South Asian, Sikh, and of other identities. And that can happen when there is a particularly high profile event that happens where students of minority groups are targeted and made to feel less safe at school. And we did everything in our power to make sure that communities that were being affected knew that OCR was there to fight for their students' rights to be free from discrimination. And we issued more policy guidance than ever before around protections on the basis of shared ancestry under Title VI.

Zac: 23:43

So 180 days is the standard, or is the goal. Was that in the Biden administration, is that where it shakes out on average? Were we able to get close to that if we're twice as many cases as we hope people have?

Sam: 23:58

Sometimes it takes much longer. And sometimes the reason it takes much longer is that when you go in because one person has complained about one kind of discrimination, often what you find is that the problem is much larger. So there was one case where a complaint was filed and it was about people touching a young Black student's hair frequently. And The investigators went in and discovered that there were swastikas on the walls, that there was this pervasive culture of discrimination based on race, based on national origin, based on religion that wound up taking much, much longer to deal with because it turned out that this was an opportunity to come in and actually fix what was impacting quite a few students that this was symptomatic of.

Zac: 24:44

And if folks don't know that OCR exists, then those things can accumulate until somebody has the kind of capital to know, oh, I can make this complaint.

Katy: 24:54

One of the hardest questions that I've gotten from stakeholders, community members, families in the last few months is what should we do now? Should we keep submitting complaints? Should we go to OCR? Should we do something else? How do I still get justice for my kid? And on a really personal level, sometimes they don't know how to answer that question. Because the last thing I would want to do is put a kid in harm's way because their personal information, the story of what might have been the worst moment in their life, is now in the hands of someone who doesn't have their best interests at heart.

Sam: 25:28

In the interest of this being a nuanced issue, there is a thing that I wish so much were part of these conversations, right? I feel like so many of these conversations have boiled down to competing talking points and rearranging the same words in them. And one of those talking points that we hear often is that schools should be in the business of teaching math and reading, and we should be getting out of all these culture wars. Fun fact, last year, a couple of years ago, an organization called First Book did a great research study. And what they found in it was that diverse books significantly increase reading scores, particularly two categories of diverse books, bilingual books and books about LGBTQ plus people. For every one additional LGBTQ plus book educators added to their classroom library, student reading assessment scores increased by four and a half points. That is enormous. So when we are talking about math and reading, when you're talking about teaching the students the basics, we are also talking about meeting them where they're at and thinking about what engages them. And when we have data this strong about what engages them, and we choose not only to ignore it, but to act against it, that is not really about these students. It's a great clue that what it's about is something that has nothing to do with them.

Zac: 26:45

Normally, it is my job to say, let's destroy that moment of happiness. But I'm not going to do that this time. I want to point out two things. Actually, I want to move us to who will meet these needs. I think Katie, you did a great job of saying there are folks out there who know about OCR who are now reticent to submit their information online. They're not sure how it's going to be used. I think we've seen many cases where it might be used against them. They file one complaint and then another comes and they become the person who's under investigation. I

Katy: 27:28

I think you highlighted exactly why the Office for Civil Rights is so essential. in ensuring that all students receive access to a quality education. There is no other entity for whom their sole job and authority is to ensure that no student experiences discrimination based on who they are. And there is incredible experience and knowledge and capability among the hundreds of former OCR and other ed employees who have been let go to support not just students and families, but also schools in ensuring that civil rights laws are appropriately enforced in educational contexts. But even with that deep knowledge, it matters to have the federal government stand up and say, this student deserves to be protected because of who they are, no matter who they are. And so there are so many lawsuits that will continue to move through the courts to make sure that that vacuum is not left, where so many past OCR staff have been put on leave and the capacity of the office has been diminished so greatly. I really hope to see OCR at its full capacity and more so in the coming years, because the work that'll continue outside of government is important, but there's nothing like having the Department of Education come in and say, you need to do right by this kid.

Zac: 29:01

And I think there's this, I think the key piece for me in all of this conversation and one that I didn't necessarily understand for the beginning is that the law says when the department enters into that conversation, It is not a confrontational. It is not a threat. There may be feelings of being threatened because nobody wants the federal government to just show up and say, hey, you're doing it wrong. But that the law says that when you show up, the goal is to find a solution for the student that is jointly just agreed upon. We don't jump right to lawsuit. We don't jump right to take your funding away despite what's happening right now. But the law says, When we go in, what we're trying to do is say, this is hurting kids and it's against the law. We'd like to help you make sure it's not against the law and the kids aren't being further hurt.

Katy: 29:53

Exactly. As I said earlier, it's intended to be a curative process, not a punitive one. And sadly, we're seeing the current leadership in the Office for Civil Rights and at the department and frankly at other agencies use civil rights laws in a way that is punitive, is intended to harass and bully educational institutions to comply with a political agenda.

Zac: 30:17

Thank you both so much for your time. And helping us to understand this just a little bit better. I've said it before, but also thank you for the service, because there are so many ways to make people angry for you or angry at you working in the federal government. And so I'm sure you have both received. any number of different means of threats and frustrated, we'll say it lightly, emails and phone calls. So thank you for that. And thank you for the work that you did to make sure all students have access to an equal education.

Katy: 30:52

Thank you, Zach.

Sam: 30:54

Thank you. And sincerely, what you just said about us goes for just about everybody who is working in that building still. Send them some love.

Stephanie: 31:08

Thanks so much for joining us today on this episode of Academic Distinctions. This has been a super uplifting way to go about my week. So if you're feeling like I am and wondering how we can do something about the crazy, the best way to start is by sharing what you've learned from this podcast with a friend, a family member, a frenemy, your family, heck, even a disgruntled in-law. Share the podcast, like us, subscribe to us. Check us out online at academicdistinctions.buzzsprout.com. Have a question for the pod or a topic you like us to dig into, email us at mail at academicdistinctions.com. Until next week, friends. This podcast is underwritten by the Federation of American Scientists. Find out more at fas.org.