States’ Rights and Wrongs – Have You Heard

Source: States’ Rights and Wrongs – Have You Heard

The rollback of civil rights enforcement in education is underway, says law professor Derek Black…

Jennifer Berkshire: The Trump Administration has just rescinded guidelines to schools banning discrimination against transgender students. There’s a lot of speculation about just how *joint* the joint letter from Secretary of Education Betsy DeVos and Attorney General Jeff Sessions actually was. But you seem unconvinced by the portrayals of DeVos as a fierce protector of civil rights.

Image result for transgender bathroomDerek Black: The stream of bad news over the past few months has been steady. The Trump transition team said the administration would scale back the civil rights work in education.  At her confirmation hearing, Betsy DeVos was reluctant to take an affirmative stance on enforcing students’ disability rights.  Since taking the post, she has remarked that she could not *think of any* current pressing civil rights issues where the federal government has a role to play; things like racial segregation and exclusion of females were things of the past in her opinion.

Now reports are coming out that Gail Heriot is likely to be the next head of the Department’s Office for Civil Rights. Heroit has been critical of the Office’s aggressive civil rights stance in recent years. With these individuals in place, it is hard to imagine much good happening at the federal level. Even if they do not rescind other Department positions on integration, school discipline, English Language Learners, and school resources, they are very unlikely to enforce existing regulations and policy guidance. Disparate impact enforcement, for instance, will be non-existent.  Rather than take on traditional civil rights concerns, I would expect they will identify fringe issues to pursue. 

Berkshire: OK—forget about *much good happening at the federal level.* Is there anything we can feel hopeful about? That was only the first question of our interview and I’m not sure how much more of this I can take…

Black: We have been here before. Disparate impact was not enforced during the Bush era either.  And it focused on more marginal issues like Boy Scouts of America Equal Access Act. I think we are actually in a better place to weather the storm today than we were last time.  The school-to-prison pipeline is a household word now. More districts are voluntarily pursuing integration.  California is bringing back bilingual education.  And parents are fed up with standardized testing.  On a host of issues, there are local advocates and local politicians that are going to do the right thing regardless of what the Department of Education does.  No doubt about it, there is a storm coming, but there are a lot of hardworking and committed people on the ground.

Image resultBerkshire: You’re the author of a book called Ending Zero Tolerance: The Crisis of Absolute School Discipline that is turning out to be alarmingly prescient.

Black: One of the central premises of the book is that when nobody else will stand up for kids, it has to be the courts. There are numerous systemic instances over the past few decades where schools and states have gone too far. And when they do it is only the courts that are the saving grace, because we have good political times and bad political times, as we are seeing.



About Jennifer Berkshire…

You find yourself at the blog of freelance journalist and public education advocate Jennifer Berkshire. Berkshire spent six years editing a newspaper for the American Federation of Teachers in Massachusetts and now (almost) makes her living writing, editing and causing trouble. She started a blog called EduShyster about education and matters related 2012 after her frequent early morning tirades against the state of media coverage of education issues threatened to upend her marriage. What began as a comic skewering of the excesses of the education reform movement has morphed into something more serious—but always with a focus on the unintended consequences of the shift towards a market-based education system. In 2016, she launched the podcast, Have You Heard, a monthly series that hands the mic to voices and perspectives that have largely been missing from the debate over the future of our public schools. Have You Heard recently wrapped up its inaugural season and has kicked off season 2.0: a talk-show on hot-button education issues with education scholar and all around smarty Jack Schneider.

Berkshire’s writing and interviews regularly gain national attention. Her work has appeared in the Washington Post, the Baffler, Salon, Alternet, the Progressive, Bloomberg EDU and some other places she is almost certainly forgetting.

For more information or to invite her to come for a visit, contact



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