Gateway to Think Tanks
来源类型 | REPORT |
规范类型 | 报告 |
Secretary DeVos Is Failing to Protect the Civil Rights of LGBTQ Students | |
Shabab Ahmed Mirza; Frank J. Bewkes | |
发表日期 | 2019-07-29 |
出版年 | 2019 |
语种 | 英语 |
概述 | Data from the Department of Education show that civil rights enforcement for LGBTQ students has been drastically scaled back since the start of the Trump administration. |
摘要 | Introduction and summaryIn one of her first acts as secretary of education, Betsy DeVos revoked Obama-era guidance that protected transgender students.1 The 2016 guidance had informed schools that the U.S. Department of Education and the U.S. Department of Justice (DOJ) interpreted Title IX of the Higher Education Act as protecting all students on the basis of their gender identity, including by guaranteeing access to sex-segregated activities and facilities in accordance with their gender identity.2 The February 2017 joint revocation of this guidance was the first in a series of moves by the Trump administration against LGBTQ youth. Among other things, this list includes trying to remove questions about the sexual orientation of 16- and 17-year-olds from the National Crime Victimization Survey; delaying and then trying to cancel new sexual orientation data collection in the Adoption and Foster Care Analysis and Reporting System (AFCARS); and targeting protections for survivors of sexual assault in schools, a crisis that disproportionately affects LGBTQ youth.3 In 2018, DeVos officially confirmed that the Department of Education was no longer investigating complaints from transgender students regarding access to bathrooms and locker rooms, as well as a range of other complaints of anti-transgender discrimination.4 This is particularly concerning given data from GLSEN’s 2017 National School Climate Survey showing that more than 40 percent of transgender and gender-nonconforming students report being required to use the bathroom facilities corresponding to their legal sex, and about 40 percent of LGBTQ students avoid gender-segregated spaces in school altogether due to safety concerns.5 All youth deserve a learning environment that is free from harassment and discrimination. LGBTQ students are at particularly high risk for harassment, which underscores the need to ensure that they have equal access to education. GLSEN’s survey found that about 70 percent of LGBTQ students experienced verbal harassment at school based on their sexual orientation, and more than half reported harassment based on gender expression or gender identity.6 Moreover, nearly 30 percent of LGBTQ students were physically harassed for their sexual orientation while almost a quarter were physically harassed for their gender expression or gender identity.7 More than 57 percent of LGBTQ students reported being sexually harassed.8 This mistreatment has significant negative effects, such as causing the affected students to miss school, which leads to lower GPAs and a decreased desire to pursue postsecondary education.9 Worse still, according to the 2017 Youth Risk Behavior Survey, lesbian, gay, and bisexual youth are roughly four times more likely to consider or attempt suicide than their straight peers.10 Similarly, transgender students are approximately four to six times more likely to attempt suicide than their cisgender peers.11 LGBTQ students do have legal protections under Title IX, even if the Department of Education is failing to enforce them. More and more courts have accepted the logical conclusion that discrimination and harassment based on sexual orientation or gender identity are inherently forms of sex discrimination.12 In 2016 and 2017, the U.S. appellate courts for the 6th and 7th circuits, respectively, held that barring a student from using sex-segregated facilities in accordance with their gender identity was a violation of Title IX, joining dozens of federal district courts as well as a number of circuit courts who had previously held that anti-transgender discrimination was a form of sex discrimination.13 In light of DeVos’ revocation of the guidance on transgender students and her decision to end investigations of many of the complaints, the Center for American Progress is investigating how complaints related to sexual orientation and gender identity (SOGI) have been handled by the Office for Civil Rights (OCR) at the Department of Education. CAP obtained complaint records from the OCR through Freedom of Information Act (FOIA) requests. After analyzing more than eight years of SOGI-related Title IX complaints, CAP found that:
The data also showed marked differences in how complaints were resolved since the start of the Trump administration:
The Department of Education has a responsibility to protect the rights of LGBTQ students, and this report confirms that it is failing to do so. To ensure that the department meets the needs of all students, CAP recommends that it:
In addition, lawmakers must pass legislation at the state and federal levels to further protect the rights of LGBTQ students. CAP recommends that:
These are necessary steps to ensure that all students, including those who are LGBTQ, have their rights properly recognized and enforced, enabling them to thrive both inside and outside of the classroom. ResultsThe present study sought to understand more about the nature of civil rights complaints filed by LGBTQ students, how those complaints were handled by the OCR, and whether there were any changes associated with public announcements from the Department of Education regarding Title IX protections for LGBTQ students. Gender identity discrimination was the most prevalent basis for complaintsMore SOGI-related complaints were filed based on gender identity than any other basis. (see Figure 1) This is in line with prior research that found that transgender students reported higher rates of anti-LGBTQ discrimination than their cisgender LGBQ peers.14
Most complaints alleged harassmentA single complaint can contain multiple allegations of Title IX discrimination. The most frequently appearing issue codes are listed below in Figure 2. ![]() More than three-quarters—75.9 percent—of the complaints in the data provided to CAP contained at least one allegation of sexual or gender harassment. Harassment was overrepresented among SOGI-related complaintsTo contextualize the information provided to CAP, the rates of reported harassment among SOGI-related complaints were compared with the rates of reported harassment for all complaints processed by the OCR. (see Figure 3) ![]() From FY 2013 through FY 2016, the share of complaints related to sexual or gender harassment was higher for SOGI-related complaints than for the general population—72.5 percent versus 19.9 percent. In other words, allegations of harassment were overrepresented among SOGI-related complaints. Complaints related to sexual orientation or gender identity have increased over time![]() There has been an upward trend in the number of new complaints filed each month. (see Figure 5) More complaints were filed in May 2016 than in any other month, which may be due to the announcement of the departments of Education and Justice’s joint guidance to schools regarding transgender students. There are several possible explanations for the upward trend in the number of complaints filed with the OCR. There may be greater awareness of federal civil rights protections for LGBTQ students, especially after widespread media coverage of state-level bathroom ban legislation in 2016.17 Accordingly, students, their families, and their advocates may be more comfortable reporting incidents of SOGI-related discrimination. And the May 2016 guidance from the Obama administration may have assured them that their civil rights would be protected under federal statute. As advocates have argued elsewhere, reported rates of discrimination are likely an undercount of actual incidents, so an increase in the reported rate may simply signal that complainants have greater confidence that they will be heard.18 It is also possible that actual incidents of discrimination have increased due to a worsening school climate. After years of improvement, from 2015 to 2017, the National School Climate Survey found fewer positive changes in school climate for LGBTQ students, and many schools may have become more hostile toward transgender and gender-nonconforming youth.19 How the OCR processes a complaintWhen the OCR receives information about alleged civil rights violations, it takes a standard approach as outlined in its case processing manual.20 The agency first determines whether the information it has received is subject to further processing. In some instances, such as anonymous correspondence or courtesy copies of documents submitted to another agency, the OCR will not process the information any further. If multiple individuals raise identical allegations against a single school at or around the same time, they are treated as a single complaint, whereas identical allegations against different schools are considered separately. Once a file is established, the OCR will evaluate the complaints based on the information provided. For example, if it is necessary to disclose the identity of the complainant in order to proceed with the case, the OCR will attempt to obtain written consent from the complainant to do so; if the complainant does not provide consent, the complaint is dismissed. Other grounds for dismissal include the OCR determining that it does not have subject matter jurisdiction over the alleged discrimination or jurisdiction over the entity alleged to have discriminated. The case processing manual contains guidelines directing OCR officers to contact the complainant to request further information and to provide appropriate assistance for “persons with disabilities, individuals of limited English proficiency, or persons whose communication skills are otherwise limited.”21 If the OCR is unable to obtain the information necessary to determine whether discrimination or retaliation occurred, the complaint is dismissed and a letter is issued to the complainant explaining the reason for the decision. If the OCR opens an investigation, it will inform both the complainant and the recipient in writing and provide details about the complaint resolution process. At this stage, the OCR may administratively close the complaint if the alleged discrimination is being addressed elsewhere, if there is a different federal agency better suited to handling the allegation, or if the complainant withdraws an allegation. For example, if an allegation is currently in litigation or is being investigated by a different federal, state, or local civil rights agency, the OCR will not process it any further and will code it as an “administrative closure.” Another example of an administrative closure would be if the OCR refers a complaint of employment discrimination to the Equal Employment Opportunity Commission (EEOC). Where appropriate, the OCR informs both parties of the option to resolve complaints through an early complaint resolution. This process involves the OCR serving as an impartial, confidential facilitator between the complainant and the recipient and helping them understand the pertinent legal standards and possible remedies. The OCR does not approve or monitor agreements reached between the parties. If the early complaint resolution process is unsuccessful, the OCR will proceed with a regular investigation. The recipient may voluntarily enter into a resolution agreement prior to the completion of an investigation. Since the investigation is incomplete, the OCR does not determine whether the recipient complied with relevant civil rights regulations. The OCR may also close a complaint file if it receives information that the allegations were resolved with benefit or change to the alleged injured party and that there is no need for an agreement or further monitoring. Both outcomes are coded as “closure with change.” Once an investigation is completed, the OCR may determine that the preponderance of evidence suggests that the recipient failed to comply with applicable regulations. In such situations, the OCR will negotiate a resolution agreement with the recipient. Resolution agreements are designed to bring recipients into compliance with regulation and are monitored by the OCR until the terms of the agreement are fulfilled. This outcome is another instance of a closure with change. On the other hand, if the preponderance of evidence does not suggest that the recipient failed to comply with applicable regulations, the OCR will close the complaint file and inform both parties. This outcome is coded as “no violation or insufficient evidence.” Complainants may appeal findings of insufficient evidence of a noncompliance determination. If the negotiation with the recipient is unsuccessful, the OCR will initiate enforcement action, either by initiating administrative proceedings to suspend or terminate federal funding or by referring the case to the DOJ for judicial proceedings. The OCR will also take enforcement action if the recipient denies access to information or fails to comply with an agreement. Few complaints resulted in corrective actionThe OCR handles complaints of Title IX violations following a standard procedure. (See text box on “How the OCR processes a complaint”) All complaints coded with resolution types “early complaint resolution” and “closure with change” indicate that the school took some action to correct the alleged discrimination—in the form an early complaint resolution between the complainant and recipient, a resolution agreement monitored by the OCR, or some other change in the recipient’s policies or practices that benefited the complainant. ![]() The data provided to CAP in response to the FOIA requests did not contain identical categories of information about the resolution of a complaint. (See Appendix for further data analysis and methodology) Of the complaints with resolution type data available, fewer than 1 in 6—14.8 percent—resulted in any kind of corrective action. (see Figure 6) The OCR did not find any evidence of wrongdoing for a tenth—9.8 percent—of allegations, meaning that it determined that the preponderance of evidence did not support a conclusion that the recipient failed to comply with applicable regulations. While resolution types refer to the outcome of an entire complaint, resolution codes indicate how the OCR processed specific allegations of discrimination within a complaint. (See Appendix for further data analysis and methodology) ![]() The level of detail provided by resolution codes offers insights into the variety of reasons for which individual allegations are dismissed, which can help to explain the high—61.6 percent—rate of dismissed complaints. (see Figure 6) Of allegations for which resolution code data were available, about 1 in 5—18.1 percent—were dismissed because the OCR did not receive consent from the complainant to disclose their identity. (see text box on “How the OCR processes a complaint”) Other common reasons for dismissal include the complainant withdrawing the allegation, which accounted for 8.3 percent of dismissals, and the complaint not being timely—also 8.3 percent. While an allegation may be dismissed if the complaint is filed more than 180 days after the last discriminatory act, the case processing manual outlines several instances in which the OCR may waive this requirement. For example, if the complainant filed a grievance with their school within the 180-day period, a waiver would be granted assuming the OCR complaint was filed within 60 days of the conclusion of the internal grievance process. Most OCR investigations that were completed found no evidence of a violationOnly a small fraction of allegations proceeded to an investigation, and even then, there was not always evidence of a violation. Among the subset of complaint records with resolution code data available, 1 in 5 allegations—20.9 percent—were investigated by the OCR, about half of which—11.2 percent of all allegations—were resolved after the OCR found no evidence of noncompliance. (See Figure 6) The OCR completed an investigation and found that the recipient failed to comply with Title IX for only 2.9 percent of allegations. It is important to note that the OCR administrative process is not itself punitive. It allows educational institutions to voluntarily resolve complaints even before an investigation is completed. Recipients were more likely to proactively address allegations through an early complaint resolution (6.3 percent of allegations) or to voluntarily enter into a resolution agreement (6.9 percent) prior to the conclusion of an investigation than they were to make changes after a completed investigation found evidence of noncompliance (2.9 percent). Very few complaints were filed against religiously affiliated educational institutionsLGBTQ students at any school can face harassment and discrimination over their sexual orientation or gender identity. However, religiously affiliated institutions can request to be exempt from complying with specific sections of Title IX that they feel conflict with tenets of their religion. Negative experiences reported by LGBTQ students at religiously affiliated institutions that have requested Title IX exemptions include being scared that they will be expelled if they disclose their LGBTQ identity; being removed from student leadership positions; and choosing to leave a promising academic program because of continued bullying, without any response from the administration.22 The data provided to CAP included a small number of religiously affiliated recipients—too few to allow for any meaningful comparisons with recipients that had no religious affiliation.23 Since religiously affiliated schools may apply for Title IX exemptions, students may choose not to file a complaint with the OCR. The Human Rights Campaign found that the majority of schools that requested waivers from FY 2012 through FY 2015 sought exemptions from provisions related to “rules of behavior,” the section of Title IX regulation related to harassment.24 Based on the latest publicly available data from the Department of Education, only 6 of the 111 schools that requested Title IX waivers as of December 31, 2016, appeared in the dataset. Schools are not currently required to notify students when they are approved for a waiver.25 However, students might not always report discrimination if they know that their school is not welcoming of LGBTQ individuals. The 2017 National School Climate Survey found that more than half of LGBTQ students never reported harassment and that the leading cause for underreporting was that students doubted that school staff would do anything about it.26 The same survey found that students were less likely to report harassment at schools without LGBTQ-inclusive policies.27 These findings suggest that LGBTQ students at educational institutions that request Title IX waivers are less likely to file a complaint with the OCR. While the number of complaints in the dataset filed against religiously affiliated institutions is low, reports of LGBTQ students being mistreated at institutions that have requested Title IX exemptions signals that misuse of exemptions continues to be a concern. The OCR has drastically scaled back corrective actions since the election of President TrumpThe data were examined to identify any differences in civil rights enforcement in line with Secretary DeVos’ public announcements of policy change. Using case resolution dates |
主题 | LGBTQ Rights |
URL | https://www.americanprogress.org/issues/lgbtq-rights/reports/2019/07/29/472636/secretary-devos-failing-protect-civil-rights-lgbtq-students/ |
来源智库 | Center for American Progress (United States) |
资源类型 | 智库出版物 |
条目标识符 | http://119.78.100.153/handle/2XGU8XDN/437043 |
推荐引用方式 GB/T 7714 | Shabab Ahmed Mirza,Frank J. Bewkes. Secretary DeVos Is Failing to Protect the Civil Rights of LGBTQ Students. 2019. |
条目包含的文件 | 条目无相关文件。 |
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