TESTIMONY OF CATHERINE E LHAMON BEFORE HOUSE COMMITTEE ON EDUCATION AND THE WORKFORCE ON PROTECTING PRIVACY PROMOTING DATA SECURITY EXPLORING HOW SCHOOLS AND STATES KEEP DATA SAFE Chair Foxx Ranking Member Scott and Members of the Committee Thank you for inviting me to testify today I am Catherine Lhamon and I Chair the U S Commission on Civil Rights and am Of Counsel at the National Center for Youth Law where I litigate civil rights cases on behalf of children and youth in poverty Before my current positions I was Assistant Secretary for Civil Rights at the U S Department of Education from August 2013 through January 2017 Litigation and policy advocacy for civil rights in education have consumed the bulk of my 22-year legal career and I speak to you today in my personal capacity and not on behalf of the U S Commission on Civil Rights or of the National Center for Youth Law Student data is of course essential to tracking schools’ progress in delivering educational equity and protecting students’ civil rights The astonishing recent gains in reducing rates of student bullying following data sunlight about the persistent prevalence of such harassment 1 highlights one example of the effectiveness of data in spurring action on equity indicators in schools Having managed the U S Department of Education’s Civil Rights Data Collection for three and a half years while working closely with the Department’s Privacy Office and other offices focused on education data I appreciate this Committee’s attention to the important topic As critical to educational opportunity as student privacy is other and more pressing topics currently threaten our national commitment to equity in education Especially because today marks the 64th anniversary of the U S Supreme Court’s pathbreaking decision in Brown v Board of Education I understand the Committee invited me to speak to these additional topics based on my civil rights background I urge this Committee to recognize the crisis moment at which the nation now teeters with respect to civil rights in education and to use its oversight authority to examine urgent topics such as the U S Department of Education’s satisfaction of the solemn charge Congress has given it to safeguard equity for students Given my deep respect and appreciation for the value and power of Congress’ oversight authority I share here a handful of examples of ways the U S Department of Education today creates an equity emergency ignoring Congress’ express commands in so doing In this Administration the Department of Education repeatedly undermines equity contrary to its Congressional charge Just this week news reports confirm that the Department has “marginalized reassigned or instructed to focus on other matters” the team of investigators 1 Sarah Sisaye U S Department of Education Bullying Rates Drop May 15 2015 https www stopbullying gov blog 2015 05 15 bullying-rates-drop html discussing 2013 data from the School Crime Supplement to the National Crime Victimization Survey which reflected a drop in bullying after staying persistently high since 2005 May 17 2018 Testimony of Catherine E Lhamon who previously worked on protecting students from predatory and misleading advertising claims from some for-profit colleges that benefited financially from their student populations’ reliance on their false claims 2 Ceasing the important work of making defrauded students whole and operating effective controls against financial fraud for vulnerable students runs directly counter to the equity mission of the Department Yet the action is consistent with countless other recent steps that merit this Committee’s review and examination This week also marked the conclusion of the public comment period on the Department’s proposal to reconsider and delay operation of a regulation to implement Congress’ mandate that schools that identify place or discipline students of color with disabilities at significantly disproportionate rates must spend some of their federal special education funds on comprehensive early intervention services 3 Rather than driving forward with urgent response to persistent data reflecting that students of color with disabilities are subject to exclusionary school discipline at rates wildly disproportionate to their student population numbers this Administration seeks a two-year delay to contemplate further a problem Congress years ago charged the Department to address and to which the regulation proposed for delay offers a modest cautious solution In a similar vein this Administration has announced the creation of a Commission headed by the Secretary of Education charged specifically with making recommendations on the repeal of existing policies regarding nondiscrimination in school discipline 4 That announcement alone signals to the broader education community that compliance with nondiscrimination laws in this area is now optional I hope I don’t need to explain to this Committee on the 64 th anniversary of Brown v Board of Education how deeply dangerous to equity it is to send a message that satisfaction of the nation’s core civil rights principle – that discrimination against Americans on the basis of race is anathema – is merely an aspiration and not a mandate We know from the painful history of implementing the Supreme Court’s clear mandate in Brown that unless federal enforcement is a real possibility too many among us will not satisfy even that most basic constitutional principle that none of us should be discriminated against on the basis of the color of our skin 5 2 Danielle Ivory Erica L Green and Steve Eder Education Department Unwinds Unit Investigating Fraud at ForProfits N Y Times May 13 2018 https www nytimes com 2018 05 13 business education-department-forprofit-colleges html 3 Assistance to States for the Education of Children With Disabilities Preschool Grants for Children With Disabilities 83 Fed Reg 8396 Feb 27 2018 https www federalregister gov documents 2018 02 27 201804102 assistance-to-states-for-the-education-of-children-with-disabilities-preschool-grants-for-children see also 20 U S C section 1418 d 4 The White House President Donald J Trump is Taking Immediate Actions to Secure Our Schools Fact Sheet Mar 12 2018 https www whitehouse gov briefings-statements president-donald-j-trump-taking-immediate-actionssecure-schools describing the creation of the Federal Commission on School Safety which will take up among other topics the “ r epeal of the Obama Administration’s ‘Rethink School Discipline’ policies” 5 For more on that history see U S Commission on Civil Rights Public Education Funding Inequity in an Era of Increasing Concentration of Poverty and Resegregation Jan 2018 http www usccr gov pubs 2018-01-10Education-Inequity pdf at pp 12-14 2 May 17 2018 Testimony of Catherine E Lhamon Notwithstanding the demonstrated importance over decades of federal civil rights enforcement every time this Administration has had an opportunity to express its values through budgets it has chosen to undervalue equity requesting devastating reductions to the Department of Education’s budget generally6 and to the budget of the Office for Civil Rights OCR specifically 7 According to the Department’s own projections if Congress had acceded to the President’s budget recommendation OCR staff would have carried crushing untenable caseloads drowning the possibility of meaningful civil rights enforcement 8 Fortunately Congress rejected these starvation budget proposals each time in these past 16 months increasing the budget of the Office for Civil Rights and supporting right-sizing the budget Departmentwide to allow for continued equity focus consistent with Congress’ equity commands In this Administration the Department of Education has – so far unchecked – arrogated to itself the power and authority to ignore the law The Department has made a blanket determination that Title IX of the Educational Amendments of 1972 9 which protects against sex discrimination in schools does not protect transgender students’ rights to access bathrooms and locker rooms consistent with their gender identity The Department’s Office for Civil Rights rejected jurisdiction over allegations of discrimination in these areas even in those states that are bound by federal court decisions at both the trial and appellate levels that reach exactly the opposite conclusion 10 Congress has not and constitutionally could not have given a federal agency authority to ignore the law In past Administrations the Department has enforced the law as interpreted in particular federal courts of appeals even when other federal courts of appeals ruled differently In contrast the Department in this Administration operates a blanket practice to reject jurisdiction over any allegation that a transgender student has been denied access to a restroom or locker room consistent with his or her gender identity even in those states in which federal courts of appeals have rejected the Administration’s misreading of the law and ruled that such denial of access constitutes sex discrimination in violation of Title IX 6 U S Department of Education Fiscal Year 2019 Budget Summary and Background Information https www2 ed gov about overview budget budget19 summary 19summary pdf 7 U S Department of Education Office for Civil Rights Fiscal Year 2019 Budget Request https www2 ed gov about overview budget budget19 justifications z-ocr pdf U S Department of Education Office for Civil Rights Fiscal Year 2018 Budget Request https www2 ed gov about overview budget budget18 justifications z‐ocr pdf 8 Recent reporting following the convictions of former Michigan State University athletics doctor Larry Nassar sheds some sunlight on the challenges OCR staff can face when investigating allegations of discrimination including recalcitrant schools failing timely or ever to provide information relevant to the investigation See Paula Levigne Michigan State sought to end federal oversight delayed sending Nassar files ESPN Jan 25 2018 http www espn com espn otl story _ id 22211140 michigan-state-sought-end-federal-oversight-delayedsending-feds-files-larry-nassar-espn The potential to face these and related challenges exists in each case the office investigates compounding a challenge of a caseload the current Department of Education projected to rise as high as 42 cases per person in contrast to times ten or more years ago when investigators carried on average six cases per person 9 20 U S C sections 1681-1688 10 Dominic Holden The Education Department Officially Says It Will Reject Transgender Student Bathroom Complaints BuzzFeed News Feb 12 2018 https www buzzfeed com dominicholden edu-dept-trans-studentbathrooms utm_term qgawOYel9# esnGgvdR9 3 May 17 2018 Testimony of Catherine E Lhamon The Department’s flouting of the law that binds it is not limited only to its failure to protect transgender students’ civil rights The precedent its action sets – that the Department may ignore the law as Congress writes it and as interpreted in courts that are binding on the Department – has wide-ranging ramifications for each and every civil right Congress has charged the Department to protect and therefore for every student who relies on the Department for equal educational opportunity Those wide-ranging ramifications are not theoretical Recent actions make concrete their reach OCR has begun closing and refusing to open cases over which it has jurisdiction simply because the complainant who seeks aid and review from OCR has filed some unspecified number of other cases in addition 11 OCR lacks jurisdiction to pick and choose which cases to open its regulatory charge is to act “whenever” it has evidence that the law it enforces may have been broken 12 That charge means that OCR must open for investigation any timely complaint over which it has jurisdiction But OCR’s new practice in this Administration now shuts out repeat filers even if their complaints raise valid issues of discrimination OCR’s new practice actually turns the federal government’s back on evidence of discriminatory harm to students which Congress in its wisdom has long outlawed At a time when the best available evidence shows ample need for strong enforcement 13 the Office for Civil Rights is relinquishing its rightful place on the field to protect the rights that give it its name This new practice places an arbitrary limit on justice leaving discretion to individual Department staff to determine that a complainant seeks too much of what Congress has promised In this Administration the Department of Education’s Office for Civil Rights has abdicated its commitment to enforcing all the laws within its jurisdiction fairly and fully Whereas Congress’ charge to the Department of Education through its Office for Civil Rights is to enforce each of the federal civil rights laws over which Congress has assigned the Office jurisdiction 14 the Department in this Administration has taken repeated steps to denigrate the vitality of particular laws and components of laws within its enforcement jurisdiction For example the Department has begun renegotiating existing agreements with schools regarding how the schools will satisfy the law to protect rights of students with disabilities taking the further step to expend resources undermining these students’ rights as distinct from protecting 11 Erica L Green DeVos Education Dept Begins Dismissing Civil Rights Cases in Name of Efficiency N Y Times Apr 20 2018 https www nytimes com 2018 04 20 us politics devos-education-department-civil-rights html 12 34 C F R section 100 7 c 34 C F R section 106 71 13 Mark Keierleber Federal Civil Rights Data Highlight Racial Disparities in Discipline as DeVos Mulls Guidance Rollback The 74 Apr 24 2018 https www the74million org federal-civil-rights-data-highlights-racial-disparitiesin-discipline-as-devos-mulls-guidance-rollback Brianna Sacks High Schools Are Dealing with Repeated Acts of Racism and Students Are Concerned BuzzFeed News Oct 23 2017 https www buzzfeed com briannasacks teens-at-these-high-schools-are-protesting-a-rise-inracist utm_term tlMAywoNJ# kgX5PMLq1 14 See U S Department of Education Office for Civil Rights Securing Equal Educational Opportunity Report to the President and Secretary of Education https www2 ed gov about reports annual ocr report-to-president-andsecretary-of-education-2016 pdf at p 6 illustrating the timeline of civil rights laws over which Congress assigned OCR jurisdiction as well as summarizing in text each of those laws 4 May 17 2018 Testimony of Catherine E Lhamon them equally with all other students 15 This devaluation of existing resolutions of viable civil rights cases signals in the strongest possible terms that the Department is not reliably open for business for students with disabilities in addition to undermining the Department’s own stated goal of operating more efficiently to resolve outstanding cases Similarly the Department recently rescinded existing guidance regarding schools’ obligations to prevent and respond to sexual violence consistent with federal law prohibiting sex discrimination in schools replacing it with new guidance that violates Congress’ mandate 16 To cite only one example of the flaws in the Department’s new position the new guidance deletes text providing for all parties to have equitable access to appeal of school administrators’ decisions – notwithstanding the longstanding Title IX regulatory requirement affirmed by the United States Supreme Court that schools must have prompt and equitable procedures in place to address sex discrimination 17 Privileging one party’s access to process over another’s is a hallmark of inequity the new “interim” guidance from the Department cannot square with the commonsense regulatory requirement that the Department ensure equity in schools’ procedures Through these among other actions the Department in the current Administration has taken distressing backward steps to undermine civil rights spurning the obligations this body set for the Department in service of students’ rights In this Administration the Department of Education has abandoned transparency that is critical to Americans’ understanding of how to achieve the equity Congress charges the Department to oversee In addition to the substantive equity harms summarized above the Department of Education has become less transparent in its activities rarely issuing press releases regarding investigation results and failing timely to update its website to allow public access to its analytic expertise regarding equity in education Again in this area too the Department violates Congress’ statutory command Whereas the FOIA Improvements Act of 2016 requires federal agencies to make available for public electronic review any released records about which it has received three or more FOIA requests 18 the Department does not post this information keeping the American public in the dark even about regularly requested information Congress has mandated be made public Moreover the Department’s Office for Civil Rights does not timely post resolutions to its website hampering the public’s ability to learn how OCR applies the law to facts and to benefit from OCR’s expertise Especially concerning for the topic of today’s hearing the Department has reassigned the longtime Chief Privacy Officer amidst reports of “a broader reorganization that could have big implications for 15 Benjamin Wermund Trump Administration Renegotiates Months-Old Civil Rights Agreements Politico May 14 2018 https subscriber politicopro com education article 2018 05 trump-administration-renegotiates-monthsold-civil-rights-agreements-537000 16 U S Department of Education Department of Education Issues New Interim Guidance on Campus Sexual Misconduct Press Release Sept 22 2017 https www ed gov news press-releases department-educationissues-new-interim-guidance-campus-sexual-misconduct 17 34 C F R section 106 8 b 18 5 U S C section 552 a 2 5 May 17 2018 Testimony of Catherine E Lhamon how the federal government supports schools and districts in protecting student privacy ” 19 The persisting absence of transparency retreat from focus on equity and potential to discontinue core privacy enforcement and technical advising and guidance work raise significant civil rights concerns Conclusion These concerns among others lowlight a crying need for effective Congressional oversight to curb practices in this Administration that harm the nation’s students I applaud this Committee for meeting today on the anniversary of the nation’s most foundational Supreme Court decision related to school equity And I am also dismayed that this Committee marks today’s significant anniversary with such a limited focus on a single subtopic relevant to education and to equity rather than examining a more fulsome scope of the Department’s critical work I urge this Committee to use its expertise and jurisdiction to review much more closely the uses to which the U S Department of Education currently puts its authority regarding equity for the sake of my two public school daughters as well as of every one of our nation’s students The strength of our nation’s commitment to justice depends in significant part on strong oversight from Congress to ensure federal agencies’ vigilant satisfaction of Congress’ charges in statutes The strongest indicators so far during the first 16 months of the current Administration suggest inattention to and often direct contravention of core civil rights commands Congress has over decades directed to the Department of Education The nation’s students deserve Congressional vigilance to correct those practices with as Dr King put it the fierce urgency of now 19 Benjamin Herold Shakeup in Office Overseeing Student Privacy Rights Education Week Mar 20 2018 https www edweek org ew articles 2018 03 21 shakeup-in-office-overseeing-student-privacy-rights html Jenny Abamu U S Dept of Ed Reassigns Chief Privacy Officer Leaving Key Position Vacant EdSurge Mar 14 2018 https www edsurge com news 2018-03-14-u-s-dept-of-ed-reassigns-chief-privacy-officer-leaving-key-positionvacant 6