D.C. Office Reflects on First Year
by Seth Galanter and Miriam Rollin
Last fall the National Center for Youth Law (NCYL) opened a new office in the Nation’s Capital to expand the litigation team and to resist efforts to roll back the civil rights of students. The new litigators have established NCYL as a force when it comes to federal education policy and the NCYL convened Education Civil Rights Alliance (ECRA) is coordinating a robust defense of student civil rights at the state and local level.
On October 2, 2017, four attorneys arrived at NCYL’s new Washington, D.C. office to join NCYL’s litigation team. They had never all been together; several of them had never met before. But over the course of the year, they coalesced into a strong team. In addition to supporting NCYL’s existing litigation activities, they have spearheaded three significant federal lawsuits that address some the critical issues facing youth today.
Two of the cases involve challenges to U.S. Secretary of Education Betsy DeVos’ efforts to withdraw protections regarding sex, race, and disability discrimination from children in school. The third involves misconduct by the District of Columbia that results in children not being able to live with their families. All these cases are currently in active litigation.
In response to DeVos’ decision to delay important regulatory reforms intended to address the over- and under-identification of students of color as students with disabilities, NCYL filed a lawsuit on behalf of the Council of Parent Attorneys and Advocates – the second lawsuit ever filed by the organization in its 20-year existence. For decades, studies have shown that race can influence which students are identified as students with disabilities, where those students are educated, and whether (and how much) they are disciplined. The delayed regulations were going to require States to use a consistent methodology for determining whether there was a significant racial disproportionality in these areas. The lawsuit, filed in federal court in D.C., alleges that DeVos’ action violates the Administrative Procedure Act because she provided no good reason for the delay.
Likewise, in response to DeVos’ decision to weaken enforcement of Title IX as it applies to sexual harassment, including sexual violence, NCYL and its partners filed a lawsuit against her on behalf of several organizations that work with survivors of sexual violence. Sexual harassment, including sexual violence, in public schools is horrifyingly common, with girls and LGBT students at particular risk. The lawsuit, filed in federal court in California, alleges among other things that DeVos’ actions violate the Constitution because they are based on the archaic stereotype that women cannot be believed when they accuse men of sexual misconduct.
Finally, on behalf of two children and the District of Columbia protection and advocacy system, NCYL and its partners filed a class action lawsuit in D.C. federal court challenging D.C.’s implementation of its Medicaid program with respect to children with mental health disabilities. The lawsuit alleges that D.C. is not providing intensive community-based services to children as required by the Medicaid Act. Its failure to do so requires children to move from their homes and families into institutions to obtain needed services, in violation of the Americans with Disabilities Act’s Olmstead decision.
Education Civil Rights Alliance
The Education Civil Rights Alliance, convened by NCYL and launched a year ago in November 2017, now includes a civil rights “Who’s Who” membership of over 50 national, state and local organizations committed to advancing the rights of marginalized students – from early childhood through college – to be free from discrimination based on who they are: their race, color, national origin, immigration status, religion, sex, sexual orientation, gender identity or disability.
ECRA is facilitating new partnerships for impact litigation and other system change work, between state/local organizations and national organizations. The state/local organizations understand the education equity challenges that need to be addressed and see the students/families impacted by discrimination every day, while the national organizations have experience in impact litigation and other advocacy strategies and deep expertise on specific education civil rights issues.
To further assist in this work, ECRA has built a cadre of education research leaders, to identify – often within hours of a request – local education researchers with experience on a particular issue, who might be available to analyze data, testify as an expert witness, etc. In addition, ECRA has built a stable of large law firms with extensive pro bono practices, to serve as pro bono counsel in new impact litigation and to help in other advocacy, when attorney interest, availability and conflict-checks permit.
ECRA has organized two other networks, recognizing their crucial roles in advancing marginalized students’ rights: a group of offices of state attorneys general, and a coterie of acclaimed teachers. ECRA convenes regular calls with the key staff of more than a dozen state attorneys general who care about education civil rights issues. The calls and related email information exchanges provide opportunities for AG offices that have been more active on education civil rights enforcement, guidance, etc. to share their work and lessons learned with others who have not yet been as active, to help them to do more. As a result of one of these calls on school safety and school discipline, 11 AG offices recently sent a letter to Secretary DeVos and AG Sessions, urging them to maintain and not weaken the 2014 federal guidance to address racial disparities in school discipline.
When discussing education system change to uphold the rights of marginalized students, a voice not often heard is that of acclaimed educators. ECRA has now developed a community of award-winning teachers who are deeply passionate about education equity and civil rights and are eager to speak out to educate other educators, as well as the media, policy-makers and the general public. These top-notch educators, in their recent letter to Secretary DeVos and the School Safety Commission, spoke persuasively against potential repeal of the 2014 federal school discipline guidance.