Why We Need BOTH the Department of Education’s Office for Civil Rights AND the Department of Justice’s Civil Rights Division

Decades ago, two different laws created the Civil Rights Division (CRT) of the U.S. Department of Justice (DOJ) and the Office for Civil Rights (OCR) of the U.S. Department of Education (ED), separately charging both with preventing and responding to discrimination in PK-12 schools and higher education. Although these offices enforce many of the same laws, they do so in fundamentally different ways and provide different types of support to students and families. Both offices are critically important to ensuring that students are protected from discrimination–together they form the federal infrastructure that enforces civil rights laws for school communities. Recent Trump Administration efforts to take enforcement functions away from ED, by delegating them to DOJ, would be both unlawful and a disaster for students, eviscerating necessary infrastructure that ensures rights are realized by students and foreclosing critically important
paths to remedy discrimination.

WHAT IS HAPPENING NOW?

Despite Congressional guarantees that students will be protected from discrimination by OCR and CRT, the Trump Administration has been working for many months to undermine the protections students receive from OCR. There have been mass firings of OCR staff; weaponization of civil rights laws to harm rather than help; closure of regional offices that provide support closer to the classroom; failure to meaningfully respond to almost any complaints of discrimination; and, most recently, an effort to “transfer” OCR’s enforcement responsibilities to CRT through an Inter Agency Agreement (IAA). Eliminating the unique and critical role OCR plays would mean far fewer students would receive support, and any support that did arrive would likely take far longer. Neither office can replace the role of the other; students deserve access to both avenues to remedy discrimination.

The Civil Rights Division (CRT) of the Department of Justice (DOJ) was created by the Civil Rights Act of 19576 to address rampant anti-Black violence, denial of Constitutional rights, and widespread refusal to comply with the Supreme Court’s decision in Brown v. Board of Education and subsequent federal civil rights laws. Led by the Assistant Attorney General for Civil Rights, CRT includes multiple issue-specific sections, including the Educational Opportunities Section (EOS), which protects students from discrimination based on race, color, national origin, sex, religion, and disability. This office is specifically charged with enforcing Title IV of the Civil Rights Act of 1964, the Equal Educational Opportunities Act of 1974, and Titles II and III of the Americans with Disabilities Act of 1990 (ADA). The office also enforces Title VI of the Civil Rights Act of 1964 (Title VI), Title IX of the Education Amendments Act of 1972 (Title IX), and Section 504 of the Rehabilitation Act of 1973 (Section 504) with respect to schools that receive financial assistance from DOJ. The office receives complaints of discrimination from students, families, and others; conducts investigations in response to complaints and based on other indications that discrimination may be occurring; and, at its discretion, litigates cases, including more than 120 court-enforced desegregation orders. CRT is a litigating component of DOJ, focused most often on using courts to enforce laws where major systemic violations of rights are occurring.

Due to its capacity and the distinct role of CRT, CRT has historically referred the vast majority of complaints of discrimination regarding schools that it receives to the Office for Civil Rights at the Department of Education.

OFFICE FOR CIVIL RIGHTS

In the Department of Education Organization Act of 1979, Congress created the U.S. Department of Education (ED) and established the Office for Civil Rights (OCR) within it, in order to ensure every student and family has access to support when their rights are violated, and to provide proactive support to schools to prevent rights violations in the first place. Led by the Assistant Secretary for Civil Rights, OCR protects students and school communities more broadly from discrimination based on race, color, national origin, sex, disability, and age.19 OCR enforces Title VI, Title IX, Section 504, Title II of the ADA, and the Age Discrimination Act of 1975 with respect to schools that receive financial assistance from ED. OCR investigates and resolves complaints of discrimination received by school communities.

Unlike CRT, OCR is obligated to review every single complaint it receives.

OCR also monitors compliance with civil rights resolutions; conducts mediation between schools and complainants; conducts compliance reviews; issues regulations and guidance to explain the law; provides critical technical assistance to schools; and collects and reports data about equal opportunity in schools through the Civil Rights Data Collection (CRDC). Unlike CRT, OCR has had regional enforcement offices throughout the country, giving it geographical presence within the local communities where complaints are received, investigated, and resolved and where technical assistance is needed. While CRT is focused on large, systemic cases and on using courts to enforce laws, OCR seeks to work with schools through a nonadversarial administrative process to enter into voluntary resolution agreements. If a school district or institution of higher education is found to have violated federal civil rights law, refuses to remedy its violation, and refuses to enter into a resolution agreement, ED can refer it to the DOJ where they can decide whether to move forward with a lawsuit.

For decades, OCR has been a free, easy, and comparatively quick option for parents, students, teachers, and others in school communities to raise an issue, get information, or begin the process of filing a formal complaint. OCR attorneys and investigators have been responsible for answering questions and assessing individual complaints – without charge – for families across the country. With regional offices, members of the school community have had support closer to where they live, although recent actions by the Trump Administration to close more than half of all regional offices has drastically reduced this support.

JUDICIAL ENFORCEMENT VS. ADMINISTRATIVE ENFORCEMENT

One of the fundamental differences between enforcement by CRT and by OCR is the use of judicial enforcement tools versus administrative enforcement tools. Consent decrees (where a school district or institution of higher education agrees to make changes in order to end a lawsuit) and court orders (where a judge imposes a decision on the district or institution of higher education) are both judicial enforcement tools used by CRT through the courts. Resolution agreements (where a district or institution voluntarily agrees to make changes in the absence of litigation), however, are administratively enforced and monitored by OCR. Consent decrees/court orders and resolution agreements are both plans for how a district or institution of higher education will remedy past discrimination and protect students moving forward.

Because the stakes are much higher for schools in a consent decree or court order (violation of either allows the court to hold the school in contempt of court), these agreements often take much longer and far more resources to reach. There are far fewer consent decrees, and this course of action is reserved for limited situations of egregious harm. Resolution agreements are specifically designed to avoid the time and resource costs of litigation so that students are more likely to see change more quickly and more often. OCR resolution agreements frequently can be entered into within weeks or months from when a complaint is filed, instead of the years litigation often takes. Any student experiencing any discrimination can expect their complaint to be reviewed and addressed by OCR without needing to raise the complaint to the level of a lawsuit and obtaining legal counsel. However, judicial enforcement always remains an option when schools refuse to remedy discrimination.

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NOTE: This document focuses on the roles of CRT and OCR. However, there are multiple other offices in each agency responsible for ensuring equal opportunity. The Office for Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education, which administers the Individuals with Disabilities Education Act (IDEA), is critically important for ensuring students with disabilities receive the supports and services to which they are entitled. In addition to efforts to transfer OCR from ED into DOJ, the Trump Administration is also currently trying to move OSERS to the Department of Health and Human Services (through an IAA). This unlawful and wrongful effort would separate the critical functions of OCR and OSERS in jointly protecting disabled students, undermines the educational emphasis of special education, and would create greater barriers to families and educators as they serve children with disabilities.

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