DOE Reopens Case Against Rutgers For Allowing Anti-Semitism On Campus

The New York Times reported yesterday:

The new head of civil rights at the Education Department has reopened a seven-year-old case brought by a Zionist group against Rutgers University, saying the Obama administration, in closing the case, ignored evidence that suggested the school allowed a hostile environment for Jewish students.

The move by Kenneth L. Marcus, the assistant secretary of education for civil rights and a longtime opponent of Palestinian rights causes, signaled a significant policy shift on civil rights enforcement — and injected federal authority in the contentious fights over Israel that have divided campuses across the country. It also put the weight of the federal government behind a definition of anti-Semitism that targets opponents of Zionism, and it explicitly defines Judaism as not only a religion but also an ethnic origin.

Education Department Considering Expanding Faith-Based Insitutions' Eligibility For Grants

As part of its Spring 2018 regulatory agenda released on Wednesday, the U.S. Department of Education signaled that it is considering rule amendments to expand the eligibility of faith-based institutions for federal grants.  In a release titled Eligibility of Faith-Based Entities and Activities, DOE said:

Various provisions of the Department’s regulations regarding the eligibility of faith-based entities to obtain grants from the Department or to participate in State-administered programs and the activities that they may perform unnecessarily restrict participation by religious entities in the Department’s grant programs by including requirements specific to such entities. The Department plans to review and to amend or rescind such regulations in order to be consistent with current law and to reduce or eliminate unnecessary burdens and restrictions on religious entities and activities.

According to the New York Times, the proposals are an attempt to align DOE rules regarding religious colleges and universities with the Supreme Court's 2017 Trinity Lutheran decision. [Thanks to Scott Mange for the lead.]

DOE No Longer Investigating Transgender Bathroom Access Complaints

The Department of Education yesterday confirmed that it is no longer investigating civil rights complaints from transgender students who are not allowed to use restrooms that conform to their gender identity.  CNN reports that the Department, implementing its prior withdrawal of Guidance documents issued by the Obama administration, now takes the position that Title IX bars discrimination on the basis of sex, but not on the basis of gender identity. A spokesperson said that Title IX does bar discrimination against transgender students based on sex-based stereotypes, but that longstanding regulations provide that sex-segregated bathrooms are not discriminatory.

White House Proposed Budget Promotes School Choice

The White House yesterday released its proposed Fiscal Year 2019 Budget (full text).  The Budget includes an increase in Department of Education funding for private (as well as public) school choice, described in part as follows:

The Budget invests $1.1 billion in school choice programs to expand the range of high-quality public and private school options for students, putting more decision-making power in the hands of parents and families.  This investment serves as a down payment toward achieving the President’s goal of an annual Federal investment of $20 billion—for a total of an estimated $100 billion when including matching State and local funds—in school choice funding. The Budget requests $500 million to establish a new school choice grant program to support a wide range of innovative approaches to school choice. These include expanding existing private school choice programs to serve more low-income and at-risk students, developing new private school choice models, or supporting school districts’ efforts to adopt student-based budgeting and open enrollment policies that enable Federal, State and local funding to follow the student to the public school of his or her choice....

Americans United issued a press release criticizing school voucher programs, saying in part:

Vouchers divert desperately needed resources away from the public school system, which educates 90 percent of our students, to fund the education of a few voucher students in private, religious schools. Voucher programs are an ineffective and damaging education policy: they do not improve – and can even lead to declines in – student achievement. They also lack accountability to taxpayers, deprive students of civil rights protections and often provide students with fewer resources than they would have in public schools.

Vouchers violate the religious freedom of both taxpayers and religious schools. The government should not compel any citizen to furnish funds in support of a religion with which he or she disagrees – or even a religion with which he or she does agree. Vouchers also threaten the religious liberty and autonomy of religious schools, as vouchers open them up to government audits, monitoring, control and interference from which they would otherwise be exempt.

Marcus Nominated For Department of Education Civil Rights Post

The White House yesterday announced that President Trump will nominate Kenneth L. Marcus as Assistant Secretary for Civil Rights in the Department of Education  Marcus is president of the Brandeis Center for Human Rights Under Law, an organization devoted to combating anti-Semitism on college campuses. According to the Chronicle of Higher Education:

Mr. Marcus, who is also a visiting professor of equality and justice at Baruch College of the City University of New York, served under President George W. Bush as acting assistant secretary for civil rights, leading the Office for Civil Rights, or OCR. Since leaving the department, Mr. Marcus has been an outspoken critic of anti-Semitism on campuses. He previously served as director of the Initiative on Anti-Semitism at the Institute for Marcus Jewish and Community Research, in San Francisco.

DOE Issues New Instructions On Transgender Students' Rights Under Title IX

As previously reported, in February the Trump Administration withdrew controversial Obama Administration's Guidance documents on rights of transgender students under Title IX.  The withdrawn documents called for transgender students to have access to sex-segregated bathrooms and locker rooms consistent with their gender identity.  On June 6 the Department of Education's Office of Civil Rights issued a memo (full text) setting out new "Instructions to the Field re Complaints Involving Transgender Students."  The new Memo emphasizes that withdrawal of the Obama Administration guidance documents "does not leave students without protections from discrimination, bullying or harassment."

The Memo provides that DOE may open an investigation in various situations, including cases in which gender-based harassment has created a hostile environment for a transgender student.  The Memo then sets out examples:

acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, such as refusing to use a transgender student’s preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes of a transgender student created a hostile environment....

Liberty Counsel, a conservative Christian advocacy organization, this week issued a press release criticizing DOE's new Memo, saying in part:

“Title IX does not require a school district or teacher to call students by false gender pronouns,” said Mat Staver, Founder and Chairman of Liberty Counsel. “Title IX is silent regarding the use of pronouns, and it cannot be a violation to refer to students by pronouns consistent with their actual sex. Requiring false pronoun usage by teachers is a compelled speech violation for teachers and compelling students to participate in a lie violates their right to free speech. I thought we had seen the last of this nonsense coming out of the Department of Education. I call upon Betsy DeVoss to end this new policy,” said Staver.

Trump Administration Withdraws Obama Title IX Transgender Guidance

Today the Trump Administration withdrew the controversial Obama Administration's Guidance on rights of transgender students under Title IX. In a Joint Letter (full text) from the Department of Justice and Department of Education, the Trump Administration formally took no position on whether Title IX protects transgender students.  The Letter reads in part:

These [Obama Administration] guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX ... and its implementing regulations ... require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.

This interpretation has given rise to significant litigation regarding school restrooms and locker rooms....

In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.

In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.

The Solicitor General's Office also sent a letter (full text) to the Supreme Court notifying it of the Guidance withdrawal.  Oral argument is scheduled March 28 in the Gloucester County School Board case involving the Obama Administration's interpretation of Title IX.  The Supreme Court specifically granted certiorari on two issues (see prior posting), only one of which would appear to be mooted by yesterday's action.  The two issues are:

... [S]hould deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?

... With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

The New York Times reports that Education Secretary Betsy DeVos had opposed withdrawal of the Guidance that protected transgender students, but that the President sided with Attorney General Sessions.  The new Joint Letter does contain a paragraph expressing concern for student rights:

Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.

Both Attorney General Sessions and Secretary DeVos issued separate statements as well.  Sessions' statement (full text) reads in part:

The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.

DeVos' statement (full text) reads in part:

I have dedicated my career to advocating for and fighting on behalf of students, and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.

Today's Joint Letter only refers to the interpretation of Title IX.  It is unclear how this will affect the similar interpretation of Title VII of the 1964 Civil Rights Act.  The EEOC has interpreted the reference to sex discrimination in Title VII to protect transgender employees. Indeed, a December 15, 2014 Memorandum (full text) from Attorney General Holder to U.S. Attorneys takes the same position on Title VII.

Falwell To Head New Federal Task Force on Department of Education Policies

The Chronicle of Higher Education reported this week that Liberty University president Jerry Falwell, Jr. has been asked by President Trump to lead a new task force that will identify Department of Education policies and procedures that should be changed.  Falwell says he sees the task force as a response to overreaching regulation of accreditation standards and policies that affect student recruitment by colleges. The New York Times yesterday speculated that Falwell's Liberty University could benefit from certain regulatory rollbacks.

Before DeVos, Trump Offered Secretary of Education Post To Jerry Falwell, Jr.

As previously reported, Donald Trump last week picked school-choice advocate Betsy DeVos as his nominee for Secretary of Education.  AP reported yesterday that Trump had first offered the position to Liberty University president Jerry Falwell Jr.:

Falwell tells The Associated Press that Trump offered him the job last week during a meeting in New York. He says Trump wanted a four- to six-year commitment, but that he couldn't leave Liberty for more than two years.

Falwell says he couldn't afford to work at a Cabinet-level job for longer than that and didn't want to move his family, especially his 16-year-old daughter.

Trump Picks School Choice Advocate For Secretary of Education

The Detroit News reports that Donald Trump has chosen Betsy DeVos, a national leader in the school choice movement as his nominee for Secretary of Education:

DeVos is chair of the American Federation for Children, a Washington, D.C.-based single-issue organization devoted to expanding school of choice options across the country....

DeVos is a former Michigan Republican Party chairwoman whose husband, Dick, unsuccessfully ran for governor in 2006.

The DeVos family, heirs to the Amway Corp. fortune, are the most prolific donors to the Michigan Republican Party, GOP officeholders and candidates....

In 2000, Betsy and Dick DeVos funded an unsuccessful statewide ballot initiative to amend the state Constitution to allow tax dollars to be used for private school tuition through education vouchers. They have since advocated for school vouchers in other states.

Earlier today, before the choice was publicly announced, Breibart News carried an article opposing DeVos which it headlined: Potential Trump Education Chief Pick Betsy DeVos Is Pro-Common Core, Family Donated To Clinton Foundation.

UPDATE: DeVos says she is not a supporter of Common Core, clarifying her position on her website.

Another Suit Challenges Feds' Interpretation Of Title IX To Protect Transgender Rights

On Wednesday, another lawsuit was filed-- this time by a group of Minnesota parents-- challenging the Department of Education and Department of Justice's recent Guidance declaring that Title IX protects transgender students from discrimination and requires that they be permitted to use restrooms and locker rooms consistent with their gender identity. The complaint (full text) in Privacy Matters v. U.S. Department of Education, (D MN, filed 9/7/2016) contends that the Guidance violates the Administrative Procedure Act, Title IX, the right to privacy and to control the upbringing of one's children.  It also contends that the Guidance infringes plaintiffs' religious free exercise rights under the state and federal constitutions and RFRA, saying:

Some Student Plaintiffs have a sincere religious belief that they must practice modesty, which includes a requirement that they not undress or use the restroom with the opposite sex.

Some Parent Plaintiffs have a sincere religious belief that they must teach their children to practice modesty and protect the modesty of their children. This includes a requirement that their children not undress or use the restroom with the opposite sex.

ADF issued a press release announcing the filing of the lawsuit.

Federal Government Issues Guidance Under Title IX On Rights of Transgender Students

The U.S. Justice Department and the Department of Education today released a letter (full text) providing Joint Guidance to schools and colleges on ensuring the civil rights of transgender students.  The Joint Guidance applies to schools covered by Title IX, i.e. schools that receive federal financial assistance. The Joint Guidance notes, however, that:

An educational institution that is controlled by a religious organization is exempt from Title IX to the extent that compliance would not be consistent with the religious tenets of such organization. 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12(a).

The letter states in part:

The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity....

A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students....

Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.