[00:00:15] Amy H-L: I’m Amy Halpern-Laff. 

[00:00:16] Jon M: And I’m Jon Moscow. Welcome to Ethical Schools. Our guest today is Derek Black, Professor of Law, and the Earnest F. Hollings Chair in Constitutional Law at the University of South Carolina School of Law, where he is also director of the Constitutional Law Center. We spoke with Professor Black in 2021 about his book, “Schoolhouse Burning: Public Education and the Assault on American Democracy.” Today, we’ll talk about the impact of the Trump administration’s education policies on schools and students. Welcome, Derek.

[00:00:50] Derek B: Yeah, thanks for having me back.

[00:00:52] Amy H-L: So how did this administration’s actions threaten students’ protection from discrimination?

[00:01:01] Derek B: Well, you know, the United States Department of Education, in particular, has an Office for Civil Rights unit. It has an office for special education programs and some other [inaudible] less notable names as well. But you have these divisions, and their sole function is to make sure that students are not subject to racial, sexual, and other forms of discrimination — you know, language discrimination or language barriers. Also, disability discrimination.

And so what you have had is a unit that has had a huge workload, unfortunately, over the last decade in dealing with, sort of an uptick in discrimination claims. And so we took a unit or the current administration took a unit that was already overworked, and more than cut it in half this year. And so that means you’ve got more than double case loads, but you know that that probably understates it a a little bit as well. I mean, there literally were regional offices closed. So the Office of Civil Rights has about a dozen regional offices so that investigators can get to schools, interview people, you know, assess the situation, do things on the ground. Well, they closed half of those regional civil rights offices al together. So just the logistics of getting to the schools are more difficult now. So you’ve got double caseloads, but you’ve also got double travel time as well.

[00:02:21] Amy H-L: Okay. Well, parents have always been able to contact the Department of Education’s Office of Civil Rights if they feel that schools violated their child’s civil rights. So what’s the current state of this office, part of the Department of Education, and of these complaints?

[00:02:39] Derek B: Well, you know, we’ve certainly have heard from parents in litigation that they had people who were on their cases and investigating their cases and working towards resolutions, for instance, and that everything just went silent this spring when folks were laid off. And presumably some of those cases are still moving forward, but a lot of parents who were in the middle of trying to get a remedy or maybe were close to getting one sort of heard radio silence. So that has left a lot of families in, limbo.

You know, there’s not many silver linings to be found, but it is worth noting that this administration apparently realized that it had gone way, way too far, which is an unusual thing for it to realize. And so just about a week or so ago, they actually did hire back some folks in the Officer of Civil Rights, because the backlog of cases was staggering. But I don’t want to give too much credit. I mean, one of the ways they dealt with that backlog was to summarily dismiss cases without really investigating them. Now, surely some claims on their face are problematic, but at least what I was hearing in the papers, which I think was based upon whistleblowers, was that some claims were just not being taken seriously anymore.

[00:03:53] Jon M: And am I right that the Office of Civil Rights and the complaints there are one of the situations in which people, parents, actually go straight to the federal government rather than going to their local Department of Education or their State Department of Education, so that the office is actually dealing on a case by case basis with individual parents’ complaints? Is that correct?

[00:04:20] Derek B: That’s right. And I always give a little bit of a public service announcement for the Office for Civil Rights, which is near and dear to my heart. It’s simply to say that, look, you know, filing a complaint with the Office of Civil Rights and initiating an investigation is a very easy thing. You go online right now if you want to, while you’re listening. You know something’s happened. You go on there and describe the situation. You don’t have to be the parent. You don’t have to be the teacher. You don’t have to be the principal. You don’t have to be the student. You just have to be aware that something has happened. You go on there, you file it, and that goes into the system, and an investigator is supposed to investigate it. And that’s important. Now, some folks might say, well, that sounds too easy, right? And maybe get frivolous claims. And again, you know, I think frivolous claims can probably be spotted relatively easily. But I think the important point here that I always try to make is that Congress set up a system whereby children’s right to be free from discrimination does not depend on whether they can afford an attorney. The right to be free from discrimination is not a pay-to-play benefit in America. But when you decimate that office, it may very well become a pay-to-play, right.

[00:05:30] Jon M: And what actually, when the office, or if the office, is functioning normally or correctly or whatever, what actually can happen as a result of the investigations if they find that yes, the complaint is actually valid. What are the remedies? What can they do?

[00:05:47] Derek B: There’s several steps in there. Let’s not jump through the investigation too quickly. because I think that’s one of the problems with some of the current interpretations by the administration. They think, for instance, you just alleged there’s some statistical disparity and the Department of Education is going to come in there and demand change. No, no, no, no. That’s not true. The current administration did rescind disparate impact regulations just a few days ago. But the point here is that the investigation is actually a very intensive part of the process, to see what really happened, to sort of sort from the he-said-she-said allegations and really determine is there a harm. Is there not a harm? And on disparate impact or disparities? Disparities alone are not enough to trigger a violation. They’re sort of questions of educational necessity, questions of whether other alternative policies might still serve the school’s interest. So, you know, investigations can easily take six months to a year.

In fact, I was in a room with superintendents, about a hundred of them, this spring, and I said, how many of you have ever had an OCR complaint filed against your school district, and almost every one of them raised their hands. And I said, you know, how many of you have ever had that complaint resolved in less than six months? And a lot of hands went down, just very, you know, I would say less than half of them stayed. And I went on down from there. I said, well, how about three months? You know, smaller and smaller, probably when I got to two months or something like that. And it was just one hand, and I thought, my goodness. So I went down to six weeks and four weeks and he kept his hand up. And then finally I just said, whom did you pay off, you know, because that just, that doesn’t happen very often.

You have this investigation period, and I dwell on that because that’s where the labor and the person-power really comes in. Once that investigation happens, the department then has to make formal findings on the record, indicating whether those facts rise to the level of a violation or not, and they present that to the school district. And at that point, right, the school district has a decision to make, which is, well, maybe we just see the error in our ways and we fix it, which is often the case, right. It’s often, if there is a factual finding of discrimination, it’s not, you know, we say remedy as though sort of someone’s imposing that on them. Normally, there is voluntary compliance. In fact, the statute says you should only move towards these stiffer penalties if voluntary compliance can’t be achieved. So there’s a meeting. You try to have voluntary compliance. Even if that doesn’t work out, you go into a period of negotiation.

It’s really only once negotiation and voluntary compliance have completely failed, which could then mean another six or seven months of negotiation right there. Don’t want to jump to the ultimate penalty, but the ultimate penalty would be funding termination. But even funding termination doesn’t happen immediately. You then have to submit all of this evidence to Congress and sort of wait for another 30 or 60 days. So, you know, investigation and negotiation is where almost all of the action happens. I mean, that’s normally in that first six months window or something like that.

[00:09:02] Jon M: And the funding, if it did come to that, and it sounds as though that’s actually a very rare circumstance, but if the funding actually were cut, what does that mean? Does it mean cutting off all the federal funds to a district, or partial, or for a period of time, or…

[00:09:16] Derek B: Well, good question. Look, even to talk about how rare it is, it might shock folks to know that in the seventies, OCR only cut off funding, final funding cutoff, to I think less than a dozen school districts, right. So even during that period of sort of, you know, national cultural fighting over desegregation, OCR rarely cut off funds. It’s like being struck by lightning, to be quite honest. And part of that is that the sanction, which you’re asking about, is so severe. We are going to pull all of your Title I funds. Maybe we’re going to pull all your Title I and your Title II and your Individuals with Disabilities Education Act and your professional … they could pull it all. Now, they don’t have to pull it all, you know, they may threaten and cut some of it and see if that gets your attention. But yes, theoretically, termination would mean all federal funds.

[00:10:09] Jon M: So we’ve been talking about the Department of Education, but traditionally the Department of Education and the Department of Justice traditionally have worked closely together to enforce civil rights protections for students. So what role, if any, is the Department of Justice supposed to be having in terms of protecting students against discrimination?

[00:10:30] Derek B: Yeah, a lot of folks are not aware of it, but there’s this unit in the Department of Justice called the Educational Opportunity Section, and they have been running about 40 attorneys or so for a long time. The Department of Justice was… The unit of the education opportunity section at the Department of Justice is the unit that steps in when OCR says, hey, we’re not just going to cut funding, we think we need to sue these guys. Or maybe, actually, instead of cutting funding, let’s just sue them. And so the Department of Justice can bring lawsuits saying that there’s a Title VI violation, equal protection violation, things of that sort. And what the educational opportunities section at DOJ normally does is sort of focus on the biggest and worst problems, to be quite honest, or an area where the law might need to be clarified, for instance. So when OCR was securing voluntary compliance during desegregation, there are these other category of school districts that were being sued that weren’t in negotiations. And so the Department of Justice would be the one suing, and we have that today as well. So OCR may refer, you know, a particularly egregious case over to the Department of Justice for lawsuit. So, the difference is administrative remedy versus judicial remedy in court. So the Department of Justice would deal with the judicial remedy, whereas OCR would deal with the administrative remedies. The Trump Justice Department has been suing over bias against white people and against DEI policies.

[00:12:05] Amy H-L: Will this be a lasting shift?

[00:12:10] Derek B: Well, I don’t think that those particular types of lawsuits are going to operate in perpetually for the rest of time. I mean some of those are on factually spurious grounds. Maybe some of them are legitimate. I can’t say that they’re not. But what we ultimately have, though, if you sort of step up, step back, 50,000 feet in the air and you say, look, we’ve got limited resources at the Department of Justice, we’ve got limited resources at the Department of Education, and we need to set priorities. So let’s set priorities on remedying systemic discrimination, the type of discrimination that maybe sets precedent, so that we can stop others. And so, you know, each administration may have certain types of priorities. The Obama administration focused on school discipline, for instance, racial disparities and school discipline. The Biden administration focused on, you know, L-G-B-T-Q, youth sexual assault, and harassment in other forms. That was a big agenda item. And this current administration has chosen to focus on anti-semitism, discrimination against white individuals, stopping transgender students from participating in athletics. So that’s their set of agendas. So point one, t he agendas do shift from administration to administration, so whoever the next administration is, it will surely shift away from what. Well, I would assume it would’ve shift away from what the current administration is doing. I guess, you know, as I list those things out, what your listeners could intuit is that, you know, this administration’s priorities are far different and far out of line from the priorities of the prior administrations.

[00:13:55] Jon M: You said that the administration’s policy is schizophrenic because, on the one hand, they say they want to return powers to the states, and on the other hand, they want to punish schools and districts for things they don’t like. Could you elaborate on that a little bit?

[00:14:09] Derek B: Yeah. I mean, it’s, you know, schizophrenic, you know, talking out of both sides of the mouth at the same time. I mean, the current administration campaigned on the idea of returning education decision-making to the states. It campaigned on the idea that federal overreach needs to come to an end. It got, I guess, a fair amount of traction on that idea, but what I say is number one on the issues that matter most to families. You know, do you have a quality teacher in your classroom? Do you have mental health counselors at your school? What’s the per pupil expenditures? How many hours are you going to spend on reading and writing each day? What textbook are you going to use? All those questions, I think, matter tremendously. Those questions are decided at the local level. State and local level have been, have always been. Federal government is not dictating those things, I think that are really important to parents. Where are the attendance boundaries between, you know, between schools. All those are decided locally, so problem number one is when they say, let’s return decision-making authority to the states. I go, look, all the important decisions are already made at the state and local level. So what is it that you’re really talking about?

Are there any decisions primarily made at the federal level? And the answer is yes, they are. They are the questions of discrimination. What types of inequality are tolerable or intolerable? What kinds violate the law or don’t? Those are made at the federal level. So if there are decisions that have been made at the federal level that are going to be returned to the states, it seems to me that’s primarily questions of discrimination. The schizophrenia or double talk, however, is that at the same time they’re saying we want to return decision-making, I guess, on civil rights to the states, this administration has a brand new agenda on certain civil rights issues that it’s pushing very, very hard and not letting states decide on. So there was a “dear colleague” letter and some various other mechanisms that happened this spring around diversity, equity, and inclusion. And the administration said, state and local school districts, you cannot, we’ll just, for lack of a better term, do this diversity, equity, inclusion stuff anymore. We think it violates the law.

Well, number one. What it was articulating as being violations were not actually violations. And number two, they’re saying we’re deciding at the federal level rather than the state level. So, we have this weird situation where if it is what I might call garden variety, discrimination, and by garden variety, I don’t mean that it’s harmless, but I mean it’s like sexual harassment, racial harassment, you know, disparate treatment and discipline. The things that happened happen all the time. They’re saying, ah, you know, we’re not going to devote resources to that. You know, you guys figure it out at the state level. But if what we’re talking about is, you know, antisemitism or transgender, or DEI, we’re on top of that, and you have no choice as to how you’re going to deal with those issues. And so it really is a strange situation, internally contradictory situation right now.

[00:17:10] Amy H-L: So, it sounds as though the school district administrators find themselves in an ethical quandary.

[00:17:19] Derek B: Yeah. I mean, I think the, one of the quandaries is, you know, look, I know this is, or I believe this violates Title VI. It seems like it’s violated Title VI for a long time.

[00:17:30] Jon M: What is Title, I’m sorry, what is Title VI?

[00:17:32] Derek B: Title VI prohibits race discrimination in federally-funded programs. And so that’s where, you know, the Obama administration dealt with issues of disparate treatment in regard to discipline and, you know, maybe even special ed things of this sort. And we have lots of rules about special education as well.

And so I think the quandary or the dilemma is, well, I know this stuff as the law is written might be a problem, but those folks in Washington aren’t worried about it anymore. So should we, should I say something about it? Should I get involved to stop it? Or should I say, look, you know, the federal government doesn’t care anymore. Why? Why should we care? That’s one ethical dilemma. The other is, look, maybe there are certain things around inclusion and diversity that are really good for our students and do not violate the law, but the federal administration is telling us they don’t want us to do those things. Should I persist, right? And try to do these things that are good for students or should I make happy with, or, or make sure that Office of Civil Rghts doesn’t come knocking on our door. And so , those are difficult. Well, I don’t know that they’re difficult decisions, but they certainly are, they are challenging decisions.

[00:18:46] Jon M: So that in a way it’s a… I mean, so much of what we talk about on the show is around, you know, ethical dilemmas, ethical decisions people have to make. And so it sounds as though in this case there are, you know, what you’re talking about is two kinds of things. One is where the federal government isn’t watching anymore and that there isn’t enforcement of the rules, and that for people who are used to and are organized around following the rules, whether they agree with them or not, that all of a sudden there’s nobody watching about the rules. And so they’re on their own to have to make these decisions about what is right and what they’re going to do. And on the other hand, you have situations where someone has a sense of what is right and what is legal, but on the other hand, they’re being threatened or the potential threat if they in fact do what they think is right, which is somewhat analogous to what’s been happening with some of the universities in terms of, you know, the government’s position and coming in and saying, we’re going to cut off all your research funds unless you do X, Y, and Z. And that I can imagine, because I’ve been thinking about this, that it’s not only if you’re the superintendent of schools, let’s say, or principal, it’s not only an ethical decision that affects your job, perhaps. But I’m sure that people are also thinking about, okay, if the government is going to punish the school district, then I’m also jeopardizing the wellbeing of a lot of my students. So I really have to decide whether I’m going to stick up for what’s right, and especially if it’s something that is affecting the most vulnerable students, who also may not be the most popular students. I can imagine districts where fighting for the rights of transgender students is not necessarily the most popular thing in the district. But, on the other hand, somebody could feel very strongly that it’s the right thing. And then, on the other hand, they have to balance or think, worry, about balancing what the consequences would be for their district. Am I, does that basically seem like what you’re saying?

[00:21:08] Derek B: Yeah, and I mean even to put it in simpler terms, just so that it’s sort of clear, right. It’s sort of like, look, the speed limit says 45 miles an hour. The speed limit has said 45 miles an hour for 60 years. The federal courts have said the speed limit is 45 miles an hour, and we’re talking about a crowded neighborhood, right. But the policeman ran an ad in the newspaper, not that anybody gets newspapers anymore. That said, we are not going to police the speed limit on Rosewood Avenue anymore. Do as you wish, right. Well, I mean, the speed limit’s still 45. The courts still say it’s 45, but the policeman says do what you want. Should I speed through, you know. Or let’s use the 25-mile-an-hour school zone. Should I speed through the school zone, given that the cop has given me blessing, or should I exercise more caution? So that’s one side of things. And then there’s the other side of things, which is, you know, I’ve got hungry children and I’ve got apples that I want to give them, and I know apples would be good for them. But the administration has said that if they see me coming through the door with any apples, they’re going to pull the federal funding. What should I do? Should I continue to bring apples? Maybe I should actually bring oranges and see if I can get away with that. Maybe that’s a smarter thing to do, right? Or should I just leave it alone and do what, what the administration tells us? And I think that’s the bind that folks find themselves in.

I mean, then of course there’s the politics of it as well. Which is kind of how we gotta this moment to begin with, right. The law wasn’t changing but the politics were. So if you followed the law or if you did what was good for students, you know, you might find yourself being cursed at in front of the school board or the, you know, whatever it may be. And so I think that that’s all prelude to this moment where it’s not just people yelling at the school boards at you for, for doing things. It’s actually the federal government punishing you for doing things. Yeah. Not just punishing you, but punishing your school, punishing your students.

[00:23:10] Amy H-L: I mean, on the other hand, we have the Department of Education, which historically been charged with administering and monitoring use of federal funds, right, federal education funds, and making sure the funds are used to supplant, to supplement, rather than supplant, local and state funds. But what happens when the DOE no longer monitors the school district spending?

[00:23:35] Derek B: That’s a tough one, too. You know, a lot of… I mean, on the law, it’s not tough. You know, the law says supplement, not supplant, so you shouldn’t be supplanting. Or the regulations said spend on A, not on B, because the complexity of it all. A lot of districts, you know, not wanting to violate the rules, we call up the Department of Education to get further direction on these issues.

And so that’s another sort of challenge, maybe more a challenge of paralysis, which is, well, what do I do when there’s no one to guide me and tell me it’s okay? They’re not telling me yes or no; they’re just not telling me anything at all. And I actually want an answer to the question. And so that can be tough.

I mean, look. I don’t want to I advise anyone to do anything contrary to law. I’m just sort of articulating the situations I see it on these type of things. Yeah, it doesn’t seem to be, there’s not the bandwidth to micromanage school districts right now. I think it would still be unethical and probably illegal to misuse funds, but the likelihood of suffering repercussions for that is probably relatively low right now.

[00:24:43] Jon M: So you just mentioned the uncertainty factor. Do you think that the atmosphere of fear and uncertainty means that some districts don’t take anti-discrimination actions that they’re, still unquestionably entitled to take because they fear retaliation? And are there any examples that you can think of?

[00:25:03] Derek B: Well, and this is so much geographically constrained, right. On some level, for the feds to get wind of it, someone’s got to complain about it, right. And so part, you know, in a politically divided school district, maybe you’re more likely to have complaints as to pose a more monolithic one. But just to give you one example, which I’d forgotten about too, you asked about this. There’s, I think it’s in New York, there’s some high school that had decided to change their mascot name. It was formerly something to do with Native Americans, but it was maybe pejorative or the mascot itself was unflattering. And so they said, you know, for the good of the students, Native Americans and others, we’re going to change our mascot to the, to the whatever, you know, the blue shirts. And the administration is taking action against them. It’s not clear to me what their theory of action is, but to force them to go back to their old. Native American mascot. I don’t think that’s going to work too well for, for the administration. And I don’t know who it was that complained about that either, but I think that is the classic example, which is, look, this makes sense on 101 different ways for us. Let’s do it. But, oh, wait a minute. Now the federal government’s mad at us. What are we going to do? I think that school district is maintaining its position that there’s no authority to force them otherwise. But the point being, if there’s no conflict in the local community to go complain about you doing the right thing, then you can probably do the right thing without too much repercussion. But if there’s someone locally to complain, maybe you get in trouble. Yeah.

We see this in higher education as well, right. They’re also just picking on high profile individuals. So they went after the Ivy League schools first, then they went after flagship institutions in blue states and purple states. But red states have actually… It’s not the case that flagship institutions and you know, in the south are Confederate waving bastions of regressivity or something like that. But you know, been exempted from federal scrutiny. Not formally exempted, but you just don’t hear those stories. 

[00:27:21] Amy H-L: Where do state Departments of Ed fit into all of this?

[00:27:25] Derek B: Great question. Some red state superintendents and state departments of education have have been aggressive on this as well, either through their own policies or just reinforcing and interpreting what the federal administration has said. So, I mean, look, you know, probably the worst state in the world, in my mind, to have been an educator in over the last few years is Oklahoma. Ryan Walters as the state superintendent, there is sort of singularly disruptive polemic. He stepped down recently, had his own long list of scandals, but although he’s the most flamboyant, he’s not the only one. And that puts a local school district in a huge bind, right. Which is, you know, your ability to resist and persist and doing the right thing. It’s a lot better if you have the state department backing you up. But if you’ve got both the federal and state departments coming down on you, you really don’t have any defensive. You don’t have any good, realistic defensive mechanisms.

[00:28:28] Jon M: Now you’re talking about where state departments that are sort of following along or initiating on their own, you know, along the same lines as the federal department. But what about, for example, in blue states? I mean, traditionally, state Departments of Ed and the federal government have had different roles. If the federal government is abandoning certain roles, can and are state departments that want to fill in, or how does that work?

[00:28:58] Derek B: Well. They are considering and trying, you know, they can fill in part, but they can’t fill in all. So for instance, I think California has an education civil rights unit. Pennsylvania has been debating a bill that would create one there. I mean, there are some others. So what those units would be in the position to do is to investigate and come to conclusions, you know, much like the Federal Civil Rights Department would. The wrinkle there is their enforcement power. So they do not have a federal funding formula sort of cutoff, termination power right now. There may be some other mechanisms through which they would write legislation and sort of give them powers, but the basic point is, yeah, you can investigate. That doesn’t mean you have the power to enforce, or at least your powers of enforcement may be limited in a way that the federal government’s weren’t. So we’ll see how that works out. I just think the takeaway is creating a civil rights unit at a state level all by itself doesn’t resolve the problem, right. You’ve got these sort of structural powers that have to be addressed.

Now, one of the ways that a red state is kind of a little bit different than that, is that they’re not investigating discrimination per se, but rather saying, here’s our education program, here’s what can and can’t be taught in our schools. And so they’re in a very specific way kind of dictating curriculum and practices to them. So they’re not investigating discrimination, they’re just saying, this is the way we’re going to operate moving forward. And that was operational, curricular, and otherwise are aligned with some of the administration’s policies.

[00:30:36] Amy H-L: You said that aside from civil rights, the changes at the Department of Education have been largely theatrics. Could you explain what you mean by that?

[00:30:47] Derek B: Yeah, so there’s a fair amount of theatrics. As I said before, there’s theatrics around this returning power to the states, right, is sort of make a big show about how we’re giving all this power back to the states, when in fact we’re not actually giving power back to the states they didn’t already have. What we’re really doing is sort of shifting the civil rights focus, saying, well, there’s some civil rights stuff we don’t care about and then we’re going to focus on others. And I think that is, you know, meant to get the attention of headlines. Also, some of these enforcements against universities. I think that is movie scripting, right. Like let’s bend them to our will in a dramatic way in the course of four days and claim victory, right. There’s theatrics there that sort of skips over the investigation, skips over the details of whether they’re actually resisting or not. I mean, that’s one of the things I said early on about the enforcements at Columbia University that were troubling to me. And I’m no friend of Columbia University and no foe either, but I don’t… anyway. But I said, look, you know, there may or may not be acts of antisemitism at Columbia. If there are, by all means, they should stop. By all means, there needs to be a remedy, but I don’t know if there’s one instance or 10 instances or a thousand instances, right. Those all demand different remedies. But even if there’s a thousand instances when we look at the process, right, we have to present those instances to Columbia, and Columbia has to look at them and say, I refuse to cooperate. I refuse to remedy. And until they do that, the process says you don’t get to pull their fundings, right. As I said earlier, it’s supposed to be a voluntary compliance. So the one thing that is missing in Columbia, in particular, is any statement whatsoever that factual findings on the record of antisemitism have occurred and Columbia refuses to address them. You will not find that anywhere in the newspapers, which then just makes me scratch my head about the theatrics of terminating these sort of large numbers of funds when Columbia doesn’t seem to be trying to defend itself, which means you shouldn’t be terminating funds.

So theatrics there. But the disparate impact regulations are also theatrical. Last week or a few days ago, I indicated they reversed, and this has been a sort of a holy grail, to get rid of disparate impact regulations, because there is this sort of fraudulent idea or sort of misstated idea that if you can just find statistical disparities, the federal government is going to make you change your policies. That has never been the case. That is not what the law says. First of all, it has to be a pretty high level of disparity. But number two, there’s three other questions, factually circumstantial questions, that have to be answered before we’d ever force a change. But that nuance, that idea that not all disparities are treated as discrimination, that there’s, it’s more complicated than that. But, you know, look, that seems like a, a movie that would put people to sleep. So instead, we’ll just theatrically say they’re overturning school policies based simply on disparities and I’ve fixed it all and I’ve eliminated the disparate impact regulations.

And I say, yeah, I, yeah, I don’t really know that you, you changed too much. Because it was never the case that we were dominating a school based upon racial disparities. But it makes for political rhetoric.

[00:34:04] Jon M: You said that there were lots of problems with federal government education policies prior to the Trump administration.

What would you like to see happen after the Trump administration?

[00:34:16] Derek B: Well, just, just to be clear on the problems before. The Obama administration, I think, violated the law and extended its power well beyond what existed with all these demands that they placed on NCLB waivers as much as…

[00:34:30] Jon M: nCLB being No Child Left Behind.

[00:34:32] Derek B: No Child Left Behind… waivers that they rewrote federal accountability with the drop of a hat because they could. Look, my students have high student loan debt, but that doesn’t mean there’s anybody in America that has a magic wand that can just make it go away. But that’s what the Biden administration did. So we had some pretty big federal overreaches.

And you know, this new administration has taken it to another level with its enforcement at places like Columbia that I mentioned earlier. It’s sort of redefinition of what discrimination is. When we talk about diversity, it’s dismantling of the Department of Education.

So what we have is this persistent escalation of the exercise of federal power, and two things connect them together — number one, it is unilateral policy setting, not by Congress, but by the president, and number two, these policies are either. Inconsistent with the judicial law, or inconsistent with statutory law, and some of these changes the administration had even asked Congress for, and Congress said no, right. So they are entirely flouting, and when I say they, I mean the last three administrations entirely flouting the rule of law, the separation of powers, and education federalism. That is bad news no matter which side of the political fence you set on, right.

And so one of the things I think is crucially important for Congress and courts and others to take seriously, regardless of who the next president is, is how do we deal with persistent, unilateral federal executive power? Beause what we’re talking about is fundamentally the most democratic institution in the United States. It is the institution upon which a democracy itself rests. Going back to the nation’s infancy, the idea of educated voters, the idea of independent voters, the idea that voters would hold elected officials accountable.

Public education is again, uh, the most democratic in its operation. It’s also incredibly democratic in its foundation, and yet, this institution, which controls the education of tens of millions of children and 10,000 school districts, has now got to the point where one single person can stand up and say, this is what education is going to be in America.

And if we go back to a famous case, West Virginia versus Barnett, which involved a compelled Pledge of Allegiance, the United States Supreme Court said if there is one fixed star in our constitutional constellation, it’s that no official high or petty shall dictate what is orthodox in matters of politics, religion, or opinion. And I can tell you that for the last decade and a half, we have had singular men, it’s only been men, dictating, right, what shall be orthodox in public education. That is a very dangerous place to be, and I don’t want my friends dictating what’s orthodox any more than my foes. And if we can accept that premise, then it means we all need to think about a restructuring of the federal role in education to protect us against that.

Do you have any specific thoughts on what that might look like or how that could be achieved?

Yeah, I mean, you may lose some listeners at this point because they get a little bit wonky, but number one is I just think we need to specifically list the things that the secretary can and cannot do in the statute, so there’s not some ambiguity between the two. Then two, we’ve got terms around waiver and powers that are kind of broad, and so the executive has exploited those. But what we saw, you know, over the last year is that if you’re just willing to take the ultimate sanction of funding termination, like, you know, go straight to jail, do not pass, go, right, that you can command an entire nation’s higher education system and much of its K through 12 education to do what you want. So I think that means that we probably need to put some more circuit breakers into funding termination, which is to say we need an independent third party involved, i.e., the courts, prior to any funding termination, because those funding terminations happened. So they’re so large that they were existential threats for some institutions and so quickly that there was no time for deliberation. The institutions really had no practical option that would preserve their institutions without just saying sure, yeah, I’ll do what you want. And so I think we need some circuit breakers in there to slow that down. And I think those are the big ones, right, some circuit breakers to slow down funding termination, because that’s the biggest threat of all. And then the other ones to sort of constrain agency discretion and the execution of statutes to make it clear what you can and can’t do. Congress tried to do that after the No Child Left Behind Act overreach that I described, and they put some mechanisms into Every Student Succeeds Act. But what we find is that with an executive that is hungry for power, it will always find another statutory vacuum to exercise that power. So I just think we’ve got to be a lot more suspicious of the exercise of federal power than than we have been in the past.

[00:40:10] Amy H-L: Thank you so much. Derek Black of the University of South Carolina School of Law. And thank you listeners. If you found this podcast worthwhile, please share it with friends and colleagues. Subscribe wherever you get your podcasts and give us a rating or review. This helps others to find the show. Check out our website for more episodes and videos, and to subscribe to our monthly emails.

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