Kenneth Marcus: alt-civil rights in the age of the alt-right

Originally published by the National Women’s Law Center 

Our Secretary of Education doesn’t believe in public schools. Our president doesn’t believe in facts. Is it any surprise that our nominee for Assistant Secretary for Civil Rights doesn’t believe in civil rights?

Just yesterday, Kenneth Marcus told the Senate that he can’t name a single civil rights violation committed by the Trump administration. This is the man who wants to lead the Department of Education’s Office for Civil Rights (OCR). This is the man who would enforce federal anti-discrimination statutes to ensure that all students have equal access to education.

As Senator Elizabeth Warren put it, “We don’t need someone in this position to do as little as possible to protect as few students as possible.”

Here are six of Marcus’s worst anti-civil rights positions:

1. Marcus supports Betsy DeVos’s attack on sexual assault survivors.

Marcus told the Senate that he agrees with Secretary DeVos’s decision to rescind Title IX guidance on sexual assault. Apparently, he thinks it was a good idea to replace 72 pages of detailed guidance with a scant 10 pages of confusing guidance that gives special rights to accused rapists.

Marcus also claimed that the Office for Civil Rights shouldn’t have required schools to use the preponderance of the evidence standard in Title IX investigations—even though OCR required schools to use the preponderance standard the last time he was in charge. Marcus might be willing to throw sexual assault survivors under the bus in order to get this new job, but we always keep receipts.

2. Marcus doesn’t think Title VI protects undocumented students.

Back in 1982, the Supreme Court ruled that schools can’t deny undocumented children access to public education. The Office for Civil Rights followed up with guidance in 2014, reminding schools that Title VI prohibits discrimination on the basis of a student’s citizenship status.

But at his Senate hearing, Marcus said he didn’t think he would be responsible for protecting undocumented students, claiming (wrongly) that he “lacked jurisdiction.” As the Trump administration continues its attacks on undocumented children, Mexicans, and Muslims, Marcus’s apathy toward undocumented students is incompatible with the purpose of the Office for Civil Rights.

3. Marcus doesn’t think Title IX protects LGBTQ students.

Between the Departments of Education and Justice’s rescission of their transgender guidance, and the White House’s transgender military ban, LGBTQ rights are squarely under attack. But Marcus doesn’t seem to think this is a problem.

In 2004, as Assistant Secretary for Civil Rights, Marcus was outraged by a professor who rebuked a white male student for expressing “conservative Christian views” about homosexuality. He promised to “aggressively prosecute” schools that engaged in what he considered “religious harassment” of conservative Christian students but somehow (very mysteriously) forgot to denounce anti-LGBTQ harassment. Years later, during a USCCR discussion on bullying, including anti-LGBTQ bullying, he again (very mysteriously) forgot to denounce anti-LGBTQ harassment as a form of harassment prohibited by Title IX.

It’s bad enough that Marcus is unlikely to protect LGBTQ students. It’s even worse that he might “aggressively prosecute” schools that discipline anti-LGBTQ harassers, on the basis that these harassers are victims of so-called “religious harassment.” At a minimum, he’s displayed no interest in enforcing the civil rights of students who are harassed or assaulted based on their sexual orientation, gender identity, and/or gender expression.

4. Marcus thinks affirmative action is reverse discrimination.

Affirmative action is a race-conscious (or gender-conscious, etc.) policy that seeks to correct the effects of historical and present-day discrimination. While Marcus supports a “color-blind society,” he doesn’t seem to recognize that colorblindness is in itself a form of racism.

You might be wondering—if you can’t see race, then how do you identify and fight racism? Well, the answer is that you don’t. As Assistant Secretary for Civil Rights, Marcus published a 2004 report encouraging schools to use “race-neutral policies” instead of race-based affirmative action. Later, as Staff Director for the U.S. Commission on Civil Rights, he followed up with a 2007 report recommending that law schools no longer be required to “demonstrate a commitment to diversity.”

Why does Marcus oppose affirmative action? It might be because he thinks that “cultural dysfunction” and “family structure”—rather than historical and present-day discrimination—are the primary causes of racial disparity between black and white individuals. It might be because he believes in the myth of reverse-racism (as does his predecessor Candice Jackson), and that race-conscious policies designed to promote workplace equality actually “reflect racial prejudice” against white people.

In any case, Marcus’s views on affirmative action make him unqualified to lead the Office for Civil Rights. Anyone who doesn’t understand how racism works and who holds such regressive racial stereotypes is unfit to lead an agency charged with enforcing protections against racial discrimination.

5. Marcus thinks sexist stereotypes are a legitimate basis for offering single-sex education.

There is overwhelming empirical evidence that single-sex education does not improve educational outcomes and that it reinforces harmful gender stereotypes.  But Marcus does not appear to believe in science or in protecting the Title IX rights of girls and women (don’t worry, he’ll fit right in with the Trump administration).

In 2004, as Assistant Secretary for Civil Rights, Marcus was responsible for single-sex education regulations that invited schools to create separate-and-unequal programs based on pseudoscientific preferences and beliefs—programs that could violate the Constitution’s Equal Protection Clause. Since the regulations were issued, single-sex education has increased sharply in public schools across the country, causing a resurgence of appallingly regressive gender stereotypes in the classroom. It became so alarming that the Department of Education issued guidance in 2014, clarifying that schools cannot rely on “overbroad generalizations” about the ability or preferences of either sex in offering single-sex programs.

“Our kids were basically being taught ideas about gender that come from the Dark Ages,” a parent from Mobile, Alabama reported. In one Pittsburgh kindergarten, boys learned vocabulary by playing basketball and running relay races, while girls learned vocabulary through fairytale stories, wands, and tiaras. In a Wisconsin school district, boys were asked “what would you do,” while girls were asked “how would you feel?”

As the popularity of single-sex education continues to grow, it’s clear that Marcus must not be given a second opportunity as Assistant Secretary for Civil Rights to roll back gender equity further.

6. Marcus doesn’t believe in disparate-impact (unintentional) discrimination.

Before we dive in, let’s do a quick Discrimination 101: People can experience discrimination in one of two forms—disparate treatment or disparate impact—for being a member of a protected class like race, sex, etc. You’re probably familiar with disparate treatment discrimination, which occurs if a policy is explicitly discriminatory (e.g., “whites only” drinking fountains), or if a facially neutral policy is administered in a discriminatory way (e.g., racial disparities in the criminal justice system and in school discipline). In contrast, disparate impact discrimination occurs if a policy is written and administered in a neutral way but still has a disproportionate and unjustified effect on members of a protected class (e.g., the Los Angeles Police Department’s unjustified height requirement). Disparate impact liability is critical to civil rights enforcement because it focuses on proving structural injustice and implementing remedies rather than proving intent or assigning blame.

But Marcus doesn’t agree that disparate impact discrimination is enough on its face to constitute a civil rights violation. Moreover, he believes that disparate impact discrimination is just another way of revealing “hidden discriminatory intent,” rather than a standalone form of structural oppression. Marcus’s reasoning suggests that he fundamentally misunderstands how even neutral policies can “freeze” an oppressive status quo, even if no hidden discriminatory intent exists.

What makes Marcus’s views on disparate impact especially dangerous? Because it’s common knowledge by now that students of color suffer from both disparate treatment and disparate impact discrimination under their schools’ zero-tolerance discipline policies, which lead to more students of color being excluded from school and which exacerbate the school-to-prison pipeline. And yet the Department of Education will probably rescind its 2014 guidance against racially discriminatory discipline practices. This leaves students of color more vulnerable than ever to citations, suspensions, and expulsions that deny their right to equal access to education.

It’s bad enough that Marcus is unlikely to protect students—especially students of color—from disparate impact discrimination. It’s even worse that he might punish schools for taking proactive measures to avoid such discrimination.

***

To recap, Marcus’s positions condone or support discrimination on the basis of sex, race, color, national origin, immigration status, sexual orientation, and gender identity. There’s no way he should be given a second chance to wreak havoc as Assistant Secretary for against Civil Rights.

 

You still have rights under Title IX

Originally published by the National Women’s Law Center

Last Friday, Betsy DeVos and the Department of Education rescinded Title IX guidance from 2014 and 2011 on what schools are required to do to protect students from sexual harassment and violence. In their place, the Department issued interim guidance that eviscerated many key protections.

Below, I’ll explain the following:

  • You still have rights under Title IX: which student rights remain protected and which duties schools are still required to carry out despite the new interim guidance
  • Here’s what has changed: how the 2017 interim guidance hurts survivors
  • Here’s what is unclear: how DeVos has made Title IX even more confusing for schools
  • Here’s what you can do to support Title IX: how you can take action today

You still have rights under Title IX

1. Title IX still covers private schools and K-12 schools.

Title IX applies to all schools that receive federal funding—including private colleges and universities that participate in the Federal Student Aid program and most K-12 public schools. If a school knows—or “should reasonably have known”—about the harassment or violence, then it is responsible for addressing the problem. And as per the 2001 guidance—which has not been rescinded, schools have this responsibility even if no formal complaint has been filed and even if there is a concurrent law enforcement investigation.

2. Title IX still protects all students, regardless of sexual orientation and gender identity.

Schools must address all incidents of sexual harassment, including same-sex harassment, gender-based harassment, and harassment of male students. While Title IX doesn’t directly ban discrimination based on sexual orientation or gender identity, the 2001 guidance—which has not been rescinded—is very clear that Title IX protects all LGBTQ students: “sexual harassment directed at gay or lesbian students” and “gender-based harassment, including that predicated on sex stereotyping” are covered by Title IX if it is “sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s program.”

3. Title IX still covers off-campus incidents and isolated incidents of harassment.

If harassment creates a “hostile environment” on-campus, then the school is responsible for taking action. This includes harassment that initially occurred on the internet or off campus (e.g., during a field trip, at an away game, at a house party). This also includes harassment by someone who is not a student or employee at the school (e.g., a visiting athlete, a guest speaker). And remember, the harassment does not have to be repeated—a single or isolated incident, like a sexual assault, may be enough to trigger Title IX.

So what is a “hostile environment”? Any environment that “den[ies] or limit[s] a student’s ability to participate in or benefit from the school’s programs or activities.” For example, if a student starts skipping class or drops out of an extracurricular in order to avoid their harasser or rapist, then the school environment has become hostile, and the school needs to respond.

4. Schools are still responsible for having formal Title IX procedures in place.

Schools must meet three procedural requirements: (1) distribute a nondiscrimination policy to all students, employees, and parents (if K-12); (2) designate at least one Title IX coordinator to oversee Title IX compliance; and (3) publish and adopt “grievance procedures” to address sex discrimination (which includes harassment and violence).

5. Investigations must still be “adequate, reliable, and impartial.”

All investigators and adjudicators must be trained on Title IX and sexual harassment/violence, and they cannot have any conflicts of interest. For example, the dean of students, athletics director, and general counsel may have some conflict of interest and should not be an investigator or adjudicator.

Technically, both students must have the same rights and opportunities to participate in the investigation. According to the new interim guidance, both sides must have the same right to present evidence, call witnesses, have a lawyer or advisor attend hearings, have that lawyer or advisor speak at hearings, cross-examine the other side, submit questions for a third party to ask the other side, etc. Both sides must receive written notice before any interview or hearing so that they have enough time to meaningfully prepare. And at the end of the investigation, the school must inform both sides about the outcome at the same time, in writing.

But I said technically. Because the new interim guidance also says that schools have the option of making appeals available only to the perpetrator. In other words, special rights for actual and accused rapists.

6. Schools are still required to disclose the findings of an investigation to both sides at the same time.

As mentioned earlier, schools must inform both sides about the “results” at the same time, in writing, including whether or not they can file an appeal. What are the “results” in a Title IX investigation?

For all investigations, the “results” include whether or not the alleged conduct occurred, what individual remedies are available to the reporting student, and what actions will be taken by the school to eliminate the hostile environment as a whole.

The “results” also include the following:

  • If the investigation is conducted by a K-12 school or if it involves sexual harassment (but not sexual violence) at the college level, then the school must inform the reporting student about any sanctions imposed on the perpetrator that “directly relate” to the reporting student, like a no-contact order.
  • If the investigation involves sexual violence at the college level, then the Clery Act requires schools to inform the reporting student of all sanctions imposed on the perpetrator, regardless of whether or not they “directly relate” to the reporting student.

Despite a common misconception, none of these disclosures violate the Family Educational Rights and Privacy Act of 1974 (FERPA). Congress has clearly stated that nothing in FERPA “shall be construed to affect the applicability of” Title IX.

Here’s what has changed

1. Schools can now tilt the evidentiary standard in favor of rapists and harassers.

The 2011 guidance had required schools to use the “preponderance of the evidence” standard. This meant that schools were required to determine whether it was “more likely than not” (greater than 50-50 chance) that an alleged perpetrator had violated the code of conduct. But the 2017 guidance says that schools can use either the preponderance standard or the higher “clear and convincing evidence” standard. No one really knows what “clear and convincing” even means—all we know is that it’s greater than 51% but less than 100%.

Why is using the “clear and convincing” standard immensely problematic? In the U.S., nearly all administrative proceedings (like school disciplinary hearings) and judicial proceedings (civil and criminal trials) use the preponderance standard as long as the worst possible outcome does not include prison. This includes all school disciplinary hearings for violations like physical assault and theft, as well as all civil (not criminal) lawsuits for serious offenses like assault and wrongful death. The law recognizes that the preponderance standard is the fairest evidentiary standard to use in these non-criminal hearings, because it gives both sides an equal opportunity to prove that their version of events is “more likely than not.” And Title IX investigations fall into this same category of non-criminal hearings.

People like DeVos like to pretend that Title IX is a criminal law that requires “clear and convincing” or even “proof beyond a reasonable doubt.” But Title IX is NOT a criminal law meant to put rapists in prison. It is a civil law meant to ensure that all students have equal access to education. Title IX does not give schools the power to send rapists or harassers to prison. The absolute most a school can do is expel a student from campus—and that almost never happens.

Look—Title IX isn’t a criminal law by any stretch of the imagination. And the “preponderance of the evidence” standard is the only standard that schools should use in sexual misconduct investigations, because it is the only standard that creates a balanced scale that is equally fair to both sides. But the 2017 guidance wants to tilt that scale in favor of alleged rapists and harassers. It’s saying that not only do sexual abusers deserve more rights than physical abusers and plagiarists, but also that rapists deserve more rights than rape survivors.

2. Schools can make appeals available only to the perpetrator—but not the student who was raped or harassed.

Although the 2011 guidance did not require schools to provide an appeal process, it did require schools to make appeals equally available to both sides. That is, if one side has the right to appeal, then so does the other. But the 2017 guidance allows schools to make appeals available only to the perpetrator.

This is yet another example of DeVos giving alleged rapists special rights. And it directly violates the 2017 guidance’s mandate that “[a]ny rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms.” Apparently, “equal rights” is just code for “protect rapists.”

This rule also has really damaging consequences for survivors of sexual harassment and violence. First, just knowing that only the perpetrator will be allowed to appeal is a clear signal to survivors that their school won’t be fair to them. The result is that fewer survivors may file a complaint in the first place. Moreover, if a school’s procedures are unfair, and survivors are barred from appealing, then they have no place to turn—unless they decide to embark on an expensive, time-consuming, and emotionally traumatizing lawsuit. And even if the lawsuit is successful, it could take years to get a judgment. In the meantime, the hostile environment remains unaddressed and is likely exacerbated by retaliation from the perpetrator, classmates, and/or school officials. All of this takes a heavy toll on the survivor’s right to get an education—which was supposed to be the whole point of Title IX.

3. Schools may now allow rape survivors to be directly cross-examined by their rapists.

Cross-examination is a way for each side to question the other side’s testimony and evidence. But in a sexual violence case, it can be highly traumatic for a rape survivor to be personally questioned by their rapist. That’s why the 2011 guidance strongly discouraged schools from allowing parties to personally cross-examine each other in sexual violence cases. To avoid perpetuating a hostile environment, schools were urged to ask each side to submit questions to a third party, who would then cross-examine the other side on their behalves.

But the 2017 guidance doesn’t care about re-traumatizing students. It just tells schools that they can allow cross-examination either by the students or by a third party. Survivors may be more likely to drop their case if they know that they’ll be directly cross-examined by their rapist. If they do drop their case, they’ll likely continue to face a hostile environment that interferes with their ability to learn at school. And if they don’t want to drop their case, then the only way they can remedy their current hostile environment is by subjecting themselves to further hostility. It’s a terrible lose-lose situation.

4. Schools are no longer urged to resolve complaints within 60 days.

The 2011 guidance had recommended (but did not require) that schools finish investigations within 60 calendar days. But the 2017 guidance doesn’t mention this time frame at all and specifically says that there is “no fixed time frame” for completing a Title IX investigation.

This is irresponsible af because some K-12 schools and colleges already take far too long to investigate Title IX complaints. Now, DeVos is essentially telling them, “You can take as long as you want. You could even just wait until the student drops out from the trauma. I won’t hold you accountable.”

Here’s what is unclear

1. Schools are no longer instructed not to facilitate mediation between rapists and rape survivors.

Mediation is a way for two (or more) students to sit down together and work out their problems face-to-face. But in a sexual harassment or violence case, it can be highly traumatic for a rape survivor to “work things out” with their rapist when they probably don’t even want to be in the same room as them. That’s why the 2011 guidance explicitly prohibited schools from mediating in sexual assault cases, even if the students came to the table “voluntarily.” As for sexual harassment (not assault), the 2011 guidance was very careful to remind schools not to force students into mediation, and certainly not to mediate without a trained counselor or mediator present.

But DeVos doesn’t care about re-traumatizing students. The 2017 guidance just tells schools that they can facilitate mediation or other informal processes as long as “all parties voluntarily agree.” In doing so, it directly conflicts with the Department’s 2001 guidance—which has not been rescinded. The 2001 guidance clearly states the same rules as the 2011 guidance—that schools are prohibited from mediating sexual assault cases (regardless of whether the parties consent), and that schools must obtain both parties’ voluntary consent and provide trained professionals in order to mediate sexual harassment cases.

It’s not clear whether the 2001 or 2017 guidance should be followed. The problem is that schools are already incentivized to sweep sexual violence under the rug. In fact, the federal government is currently investigating 137 K-12 school districts and 246 colleges and universities for violating Title IX. Under the 2017 guidance’s harmful omissions, schools will be even more incentivized to coerce rape survivors into entering mediation “voluntarily” instead of conducting a proper investigation.

2. Schools are no longer instructed to prohibit cross-examination of rape survivors about their sexual history.

Asking rape survivors about their sexual history used to be a popular and underhanded method of discrediting survivors, blaming them for their own rapes, and re-traumatizing them during court proceedings. That is, until rape shield laws were enacted to prohibit this line of questioning as irrelevant and prejudicial. For similar reasons, the 2011 guidance prohibited schools from questioning students about their sexual history with anyone other than the alleged perpetrator. Furthermore, the 2011 guidance reminded schools that “the mere fact of a … dating or sexual relationship between two parties does not itself imply consent” during the specific incident being investigated. In other words, the 2011 guidance recognized that consent isn’t transferrable; it must be obtained every single time.

Unfortunately, the 2017 guidance doesn’t care about victim-blaming. It deleted the entire section that restricted cross-examination of survivors about their sexual history—leaving things unclear as to whether this line of questioning is permissible or not.

3. Schools are no longer instructed to respect students’ requests for confidentiality.

Students who report harassment often want to keep their identities confidential. They may also not want to pursue formal disciplinary action against their harasser or rapist because they want to focus on school or avoid retaliation from other students. That’s why the 2011 guidance contained detailed instructions for schools on how to respect a reporting student’s request for confidentiality. If a school was able to conduct an informal investigation without disclosing the reporting student’s identity, then it was urged to do so. Schools were instructed to override a student’s request for confidentiality only if they felt that the risk of further harm was too high, and that it was necessary to pursue disciplinary action against the alleged perpetrator. Even so, schools were required to notify the reporting student first before disclosing their identity to the alleged perpetrator.

The 2017 guidance contains zero instructions on confidentiality. It just states that if a school pursues disciplinary action, then the alleged perpetrator should receive written notice of the allegations, “includ[ing] the identities of the parties involved.” By omitting instructions on confidentiality, the 2017 guidance sends a message to schools that protecting student confidentiality is not a priority. In doing so, it deters survivors from reporting and, as a result, impedes schools from effectively monitoring repeat offenders.

However, the Department’s 2001 guidance—which has not been rescinded—is clear that student confidentiality is important. But schools and students wouldn’t know this unless they meticulously inspected the 48-page document, which states: if a student asks the school not to reveal their identity to the alleged perpetrator, then “the school should take all reasonable steps to investigate and respond to the complaint consistent with the student’s request as long as doing so does not prevent the school from responding effectively to the harassment and preventing harassment of other students.”

It’s unclear how the 2001 requirement to respect the survivor’s request for confidentiality jives with the interim guidance’s instructions to reveal the survivor’s identity if seeking disciplinary action. This is yet another example of how DeVos’ guidance makes things more confusing for schools.

4. Schools are no longer instructed to minimize the burden on the student who was harassed when implementing interim measures.

An investigation can take several weeks or even several months to complete. In the meantime, the hostile environment continues to impair the harassed student’s ability to learn. That’s why schools are encouraged to provide interim measures that protect students’ right to learn while the investigation is pending: e.g., extensions on assignments, an escort between classes/activities, modified class schedules to avoid contact between the parties, restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased campus security and monitoring.

The 2011 guidance was mindful of the fact that the student who was harassed is far more likely to need interim measures than the alleged perpetrator. It specifically reminded schools to minimize the burden on the student who was harassed, and not to remove them from classes or housing while allowing alleged perpetrators to remain.

But the 2017 guidance disingenuously pretends that both parties need the same kind of protection. By requiring schools not to “rely on fixed rules that favor one party over another” when providing interim measures, the 2017 guidance directly conflicts with the Department’s 2001 guidance, which states that “interim measures should be designed to minimize, as much as possible, the burden on the student who was harassed.”

Again, it’s unclear which guidance document wins out. If it’s the 2017 guidance, that may mean that schools can effectively punish students who report harassment by changing their classes or housing, transferring them to an alternative school, or even placing them on an involuntary leave of absence until their perpetrators graduate. Not only does this impair survivors’ right to education, but it also removes them from their support network of friends and dormmates—at a time when they most critically need that support.

Here’s what you can do to support Title IX

The new interim guidance is trash. It hurts survivors, makes schools less safe, and creates uncertainty for school administrators. But here’s the thing – schools can choose not to follow it. Here’s what you can do to help spread the word:

  • Sign our pledge: Do whatever it takes to #StopBetsy and the Trump administration from enshrining rape culture as official U.S. Department of Education policy.
  • Ask your school administrators to adhere to the 2011 and 2014 guidance. If they have questions, you can share our easy-to-read fact sheets with them (see below).
  • Ask your school’s Title IX coordinator to adhere to the 2011 and 2014 guidance. Share these fact sheets with them too.

Fact sheets (~2 pages each):

  • Mythbusting Title IX: Dispel 8 common myths about Title IX
  • Sexual Violence & Title IX: What schools must do to address sexual violence
  • FERPA & Title IX: Despite what some schools believe, disclosures required by Title IX do not conflict with the Family Educational Records Privacy Act (FERPA).
  • LGBTQ Students & Title IX: Title IX prohibits gender-based harassment—harassment based on a student’s nonconformity with stereotypes of masculinity and femininity, which includes sexual orientation and gender identity.
  • Cyberbullying & Title IX: Schools are required to address sexual harassment that occurs via text messages, instant/direct messages, emails, videos, social media pages, etc.