Even modest and long-overdue budget cuts draw condemnation. The White House proposed cutting the budget of the Education Department’s Office for Civil Rights (OCR) from $108.5 million to $106.7 million—a “minuscule amount,” notes education researcher George Leef. Yet the liberal columnist Colbert King claimed this tiny 1.7 percent cut would have somehow “gutted” civil rights enforcement. In reality, as Professor Shep Melnick notes, even if Congress enacted this budget cut, OCR’s budget in 2018 would be no smaller than it was in 2016, and larger than it was in 2014, when “OCR’s budget was just a little over $98 million.”
While advocates claim OCR needs more money due to an increased caseload, Melnick says the rising caseload is partly attributable to three filers who together filed more than 7,000 largely duplicative complaints. In 2014, that included “1,700 sex discrimination complaints filed by two individuals.” In 2016, “a whopping 6,157 Title IX complaints” were filed by one individual.” As Melnick asks, “Should the number of complaints filed by two or three enterprising private citizens be the standard for judging how much public money a regulatory agency receives?”
Moreover, Melnick points out that the agency’s backlog of cases is not due to an inadequate budget. Rather, it came into being due to the Obama administration’s unnecessary decision to dramatically expand the scope of investigations beyond what’s needed to provide redress for individual victims of discrimination. Rather than resolve individual complaints about sexual assault or harassment on campus, or racial disparities in K-12 school discipline, the Obama-era OCR would begin “a full-blown investigation of the entire institution” every time it received an individual complaint. And it would keep searching for a violation until it found one, even if it didn’t involve any discrimination or harassment, but just “deficient record-keeping.”
Civil libertarians like Robert Shibley of the Foundation for Individual Rights in Education argue that these “systemic” investigations improperly required colleges to revisit other complaints resolved long ago, potentially leading to colleges overturning not guilty verdicts against students accused of harassment or assault. “That was quite alarming from a double jeopardy and civil liberties perspective,” Shibley said. The Obama-era OCR also prodded colleges like University of Virginia to investigate even when students suspected of being victims didn’t even want any investigation. Other system-wide investigations under Title VI prodded school districts to adopt racial quotas in school discipline when minority parents argued that an individual teacher or principal had improperly disciplined their child.
The Trump administration has now withdrawn the Obama administration’s 2014 enforcement guidance. That guidance had demanded that there be “systemic” investigations of colleges in response to every individual complaint of sexual harassment or assault and “systemic” investigations of school districts in response to every individual complaint of racial discrimination in school discipline by a teacher or principal. (Its June 2017 memo to OCR regional directors about the proper scope of investigations can be found at this link.)
That withdrawal should make it easy for OCR to eliminate its case backlog, even if its budget shrinks in the future. Moreover, if OCR stopped making up violations of laws such as Title VI and Title IX out of thin air, it would have much less to do and could get by with a much smaller budget. As two members of the U.S. Commission on Civil Rights noted in a February 26, 2015 letter to Congress, OCR “has all too often been willing to define perfectly legal conduct as unlawful,” spending taxpayer money “to address violations it has made up out of thin air. Increasing OCR’s budget would in effect reward the agency for frequently overstepping the law.”
There are much larger education budget cuts in Trump’s budget blueprint, but they are justified and long overdue. As education scholars Bill Evers and Vicki Alger note at Intellectual Takeout, “Trump wants to reduce the U.S. Department of Education’s discretionary budget by $9.2 billion, from $68.3 billion to $59.1 billion.” Nearly two-thirds of the cuts are “from eliminating programs that are duplicative or just don’t work.”
One failed program slated for elimination is the School Improvement Grant (SIG) program. As Evers and Alger note, it “gave poorly performing schools fistfuls of cash” in the hope that they would “turn themselves around and raise student achievement.” That program has consumed more “than $7 billion to date—including a one-time infusion of $3 billion” in Obama’s stimulus package. “The Obama administration publicly revealed the SIG program’s colossal failure on January 18, 2017, just hours before President Obama’s appointees departed. According to the final evaluation … SIG had ‘no significant impacts’” on student achievement or graduation. “Commenting on the evaluation, Andrew R. Smarick, a former U.S. deputy assistant secretary of education, called SIG ‘the greatest failure in the history of the U.S. Department of Education.’”
Evers and Alger note that the “K-12 programs proposed for elimination in the Trump budget are similarly ineffective. In 1994, the Clinton administration started the 21st Century Community Learning Centers program. … Nearly $18 billion spent over two decades later, there’s scant evidence of success. ‘It’s a $1.2 billion after-school program that doesn’t work,’” according to Mark Dynarski of the Brookings Institution, a former Clinton administration official and an expert on the program.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.
Editor's Note: This piece was originally published by the Competitive Enterprise Institute.