'Back in Business' on Civil Rights

WASHINGTON -- The standard line from President Obama and his aides is that after years of relative inattention from the Republican White House that preceded it, the new administration's civil rights infrastructure is "back in business," on the lookout for evidence of discrimination in the nation's schools and colleges.

June 29, 2010

WASHINGTON -- The standard line from President Obama and his aides is that after years of relative inattention from the Republican White House that preceded it, the new administration's civil rights infrastructure is "back in business," on the lookout for evidence of discrimination in the nation's schools and colleges.

In a pair of presentations here Monday at the annual meeting of the National Association of College and University Attorneys, a bevy of administration officials made clear that they had ambitious agenda that would use federal laws and rules both to achieve President Obama's policy goals (like increasing the number of college-going Americans) and to ensure equitable access to education for Americans regardless of background. The officials spoke mostly about efforts that are already underway: the Education Department's plan for toughened enforcement of Title IX in athletics, and its well-documented efforts to spur states to generate better data to improve the performance of colleges and schools.

But the lengthy list they presented of current and coming endeavors included several previously undisclosed investigations and inquiries, suggesting a level of activity that seemed to make the scrutiny-wary lawyers in the audience squirm just a bit.

Russlynn Ali, the assistant secretary for civil rights at the U.S. Department of Education, reinforced the impression she and others had given in recent months that the agency's Office for Civil Rights will be stepping up its scrutiny of colleges' and schools' policies of equitable access. She said that the office had begun "about 21" comprehensive compliance reviews (out of the 38 that she and Education Secretary Arne Duncan vowed to conduct this year during a March news conference on the agency's agenda), and that the office had informed Congress last week that it had begun an investigation into potential Title IX violations at one postsecondary institution.

Ali also said that the administration would "soon" announce the resolution of longstanding inquiries into allegations of "sexual violence" at two colleges and universities.

In addition to those enforcement actions, Ali promised a long list of forthcoming guidance for educators on a range of topics (following in the wake of the department's April release of new guidelines on Title IX in athletics), including guidance on sexual violence, on the "use of race in admissions and recruiting" ("I know you're eager and waiting to hear from us about that"), and access for disabled students to college- and career-preparatory courses.

Ali also revealed that the department would today release a "Dear Colleague" letter that sets out the federal government's current policies governing disabled students' access to Amazon's Kindle and other emerging technologies that can be used for educational purposes. She said the letter would offer guidance to colleges and schools consistent with the settlements that her agency and the Justice Department reached with five colleges last winter over their use of the Kindle for textbooks.

(At a later session, John Wodatch, chief of the disability rights section of the Justice Department, similarly encouraged college officials to be thinking about their policies for giving blind students and those with limited manual dexterity access to their online learning offerings, suggesting that that was another area that federal officials were examining.)

Data and Privacy

The department's civil rights agenda may be ambitious, but Ali and her colleagues sought to frame it in the context of the agency's key overarching goal: the "north star," as the Duncan aide Carmel Martin called it, of President Obama's college completion goal. The administration is intent on getting more Americans into and out of college or prepared for a career, and asking "every sector [of education] to take up their game and get better" to make that happen. In furtherance of those goals, the Education Department is betting that generating better data will help educators (and the state and federal policy makers looking over their shoulder, and footing a large part of the tab) know what's working and what's not.

"Data is an essential part of creating that culture of improvement," Martin said, as she recounted the significant federal money that the administration has poured into state longitudinal data systems aimed at tracking students throughout the educational system and into the work force.

Those efforts have agitated many experts on student privacy, who believe that the department has shortchanged concerns about how individuals' data might be used, purposefully or not. In apparent recognition of the critiques, Charles Rose, the department's general counsel, said during Monday's session at NACUA that the agency would reorganize its structure to put a greater emphasis on privacy.

Rose said the department had decided to create a position of "chief privacy officer," and that the new official -- who would report to the Office of Management -- would oversee the Family Policy Compliance Office, which is responsible for administering the key federal student privacy law, the Family Educational Rights and Privacy Act. How the law is administered and how that office is overseen have been the subject of significant contention in the last year, with privacy advocates accusing department officials -- including Martin, to whom the Family Policy Compliance Office now reports -- of letting the administration's policy ambitions overwhelm consideration of student privacy.

Rose said the change was designed to give the FERPA office "a higher profile in the department" and to result in "better coordination" of privacy issues within the department.

He acknowledged, however, that it would also "send a strong signal that we value student privacy, and that we hold in highest regard, as one of our primary responsibilities, to ensure the privacy of student information in this country."

Rose also said that the department has sent the White House Office of Management and Budget proposed regulations on student privacy -- rules that he said were designed to "strengthen enforcement" of the privacy law.

Advocates for student privacy said they welcomed the department's renewed attention to privacy but questioned how meaningful the steps might be, given how much authority the agency has already ceded to state officials on the longitudinal data systems.

"They have given away the most significant ... policy proposition: that my private information that is in possession of an institution can be shared with a third party only with my consent or with very limited exceptions," said Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers. "In their enthusiasm and zeal for better policy, they got tangled up and they've handed the entirety of the educational record to the states."

He added: "This feels a little bit like taking care of the barn after the horse has run away."


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