It comes as no surprise that the Biden administration is planning to reverse the course in civil rights, especially in education, and to reintroduce the policy reversed by the Trump administration. This includes issues ranging from sexual violence to racial discipline and affirmative action. If President-elect Biden can beat the record of the Trump administration, Republicans and Democrats should join forces to support its work. But if they intend to throw out the baby with the bathwater, reversing both the progress and the problems of the past four years, they have missed an important opportunity.
Biden’s campaign reportedly seeks to expand the role of the Department of Education in enforcing civil rights to the level of the Obama administration. At the time, the Department’s Office for Civil Rights (OCR) gave priority to systematic investigation over the resolution of individual claims. If done properly, systematic investigations can affect thousands of students. The Trump administration conducted systemic investigations into sexual violence in places like Pennsylvania State University, Michigan State University, the University of Southern California, and Chicago Public Schools. The systemic approach, however, means entering school systems with good intentions but no exit plans for investigations that languish for years without resolution.
This is what we see in the data. In the last three fiscal years, compared to the last three years of the Obama administration, OCR resolved 1,507 more civil rights complaints “with change” – that is, they required schools to change discriminatory practices. Among them are six times as many accusations of sexual violence. If the Biden administration returns to the Obama approach, does it plan to solve fewer cases than the Trump administration and demand changes in fewer schools and colleges? Or will the new administration find a way to combine the ideals of the Obama administration with the efficiency of the Trump administration? On this question hangs the fate of our nation’s weakest students.
According to reports, the Biden Team wants to undo Secretary Betsy DeVos’ regulation for Title IX. Their goal is to increase protection for survivors of sexual violence. But will they also reverse the progress in due process of law and the new victim protection? It should be remembered that the federal courts have adopted some of the same rules for due process, such as the right to cross-examination introduced by the new Title IX regulation. At the same time, the universities are adopting the new rules that extend protection for victims of domestic violence, dating violence and stalking. Will this also be reversed?
Next, the Biden Team is reportedly going to reverse the Trump approach of disproportionately disciplining black students. Again, if the Biden Team can better identify and eradicate racial discrimination, they will earn great applause. But it’s one thing to reintroduce a policy – words on a piece of paper – and quite another to achieve real results for children and their families. And if they achieve change, will they reduce discriminatory treatment or will they simply put pressure on schools to increase their numbers and loosen their discipline? While the latter is tempting, it can hinder teaching in the very schools that are best suited to our underserved populations.
Similarly, the Biden team plans to reverse the Trump government’s approach to affirmative action. If the new government succeeds in expanding and diversifying the pipeline of graduates who are able to succeed in selective and highly selective universities, they will have more power. But if they simply ignore the demands of Asian students who, despite outstanding performance, have high chances of admission, then their work will deserve a different answer. In the same way, we can support their goal of increasing protection for marginalized students, but will they support all students instead of picking and choosing which students deserve their protection? For example, will they reinforce or diminish the progress that the current administration has made in combating anti-Semitism on campus?
It is politically easy for a new democratic team to reject the work of its predecessors. In our system, this is their right. It would be remarkable, however, if they could achieve new victories while building on the progress of their predecessors.
Kenneth L. Marcus is chairman of the Louis D. Brandeis Center for Human Rights Under Law. He served as assistant to the U.S. Secretary of Education for Civil Rights (2018 to 2020).
The views expressed in this article are those of the author.