Should states pick up the pieces left by the decimation of the U.S. Department of Ed?

Should states pick up the pieces left by the decimation of the U.S. Department of Ed?

By Tiffany Hester
Senior Education Attorney

The U.S. Department of Education and all its offices have been gutted. Although the federal laws that the Department is supposed to enforce remain unchanged, those laws (Title IX, IDEA, Section 504, FERPA, etc.) are most effective with oversight and accountability. That’s what we’ve lost…at the federal level.

Schools know that the Office for Civil Rights (OCR), currently operating with less than a skeleton crew, is unlikely to come knocking on their door when a student files an OCR complaint alleging the school failed to follow proper Title IX procedures in response to a report of sexual assault. Schools are also likely aware that OCR’s priorities, at least as directed by the current administration, seem to be on cases involving trans students’ access to bathrooms or participation in sports.

But all is not lost. Some states have their own laws that protect students from bullying, discrimination, educator misconduct, and harassment in school. State departments of education and state civil rights agencies enforce those laws, which sometimes provide more rights and protections than their federal counterparts. One state is even taking things a step further. Soon the Pennsylvania legislature will consider a bill to authorize the Pennsylvania Department of Education to investigate violations of federal civil rights laws like Title IX and Section 504.

But, should they? While this may be the best option we have until the Department of Ed is restored, a federal response is ideal. Relying on state laws and remedies places unsustainable strain on state agencies that have not historically budgeted for this level of oversight. It also creates a patchwork of inconsistent student rights across the country and likely means that students in blue states, which have historically invested in both education and civil rights enforcement, may have more rights and remedies than others.  

We need to pressure Congress to step in and stop the presidential administration from effectively eliminating students’ federal civil rights. But unless and until that happens, we can turn to state agencies to fill the gap. To that end, VRLC is working with a law firm to research state alternatives to OCR complaints in each U.S. jurisdiction based on state anti-discrimination/harassment/bullying laws. If you’re an attorney or advocate working with student-survivors and need support in finding alternatives to OCR, reach out to us at [email protected].

Tiffany Hester (she/her) is a Senior Attorney on Victim Rights Law Center’s national training and consultation team. She leads the Youth in Education Settings project, which focuses on building capacity nationally for legal advocates and civil attorneys to support student survivors in K-12 schools. Previously, Tiffany worked at the Kansas State Department of Education where she trained and monitored school districts for compliance with special education law.