When the FBI learned of the extent to which James “Whitey” Bulger had subverted their Boston Field Office, their response was to clean it out, replacing absolutely everyone in it. Even those who hadn’t done anything wrong were given the choice of transferring to a different job with the Bureau or finding another line of work.
The FBI then staffed the Boston office with entirely new people, most new hires, none of whom had grown up in the South Boston housing projects with the Bulger brothers. Yes, Bulger’s gang was bribing the FBI, but the real problem was that the gangsters and FBI agents had grown up together and were all friends with each other.
A similar problem exists today with the people staffing the Field Offices of the U.S. Department of Education’s Office for Civil Rights (OCR) and the academic administrators whom OCR is supposed to regulate. In the midst of the litigation related to the Students for Fair Admissions lawsuit against Harvard University, Harvard Law Professor Jeannie Suk Gersen identified a disturbing incident between the Boston Regional Office and the Harvard Admissions Department.
Writing about this in the New Yorker, Professor Suk Gersen explained that on November 30, 2012, Thomas Hibino—then an employee of the Boston office and who would go on to head it before retiring—was engaged in friendly email banter with William Fitzsimmons of the Harvard admissions office as they discussed their plans to meet for lunch.
[RELATED: Professor KC Johnson Sues over Violation of FOIA by Education Department]
Hibino included an attachment that he described as “really hilarious,” adding that he wrote it for the amusement of both his and the Harvard admissions office. Written on stolen Harvard letterhead, it was purportedly written by a now-deceased member of Harvard’s admissions team. It downplayed what would have been an applicant’s truly significant accomplishments—including a Nobel Peace Prize—concluding that he was “just another AA CJer”—another Asian American applicant intending to study biology and become a doctor.
Fitzsimmons thought that his deceased colleague had written it, with Hibino of the OCR responding that no, it was he who had written it. While Professor Suk Gersen’s interest involved the trial judge’s refusal to permit this to become part of the public record, my interest is a bit broader—neither Hibino nor Fitzsimmons objected to the joke as being racist, which it clearly was.
More importantly, it shows the close relationships between the people working in these Field Offices and the universities they are supposed to be regulating. It’s the same problem that the Boston FBI Office had with relationships dating back thirty years to a shared childhood on the streets of South Boston.
In addition, OCR has moved many of its regulations from the widely-circulated Code of Federal Regulations to internal Field Office Manuals that the public does not have access to. I discovered this researching hate speech codes in the ’90s and could not understand the discrepancies between OCR policy as I was being taught it was and what I was reading in the Federal Register.
I called down to DC and was told that there were things not in the regs—they had moved everything controversial to the manuals of the regional field offices so that Congressional aides wouldn’t be able to find them. And hiding things from the Republicans isn’t really the way that the Federal bureaucracy is supposed to function.
Over the years since, we have had some good people serving as the Assistant Secretary in charge of OCR. Gerald Reynolds and Kennith Marcus come to immediate mind. Still, neither they nor reform-minded Secretaries such as Betsy DeVos have been able to accomplish much because the OCR decisions aren’t made in Washington, DC.
They are instead made in places like Boston, Atlanta, Cleveland, Philadelphia, Seattle, Dallas, San Francisco, Denver, and New York City. And as best I can tell, the President can’t appoint anyone in these regional offices—they’re all in the union and pretty much free to do whatever they damn well please.
[RELATED: Obama Promised Hope but Delivered Racial Animosity. Academia Follows Suit.]
And they do, in fact, do whatever they please, creating another problem—the regional offices aren’t even consistent with each other. OCR’s decisions regarding the Americans with Disabilities Act are a good example, with it being an open secret that ADA means one thing in Region 1, pretty much the exact opposite in Region 2, and then something closer to what Congress intended in the rest of the country.
The solution is for Secretary McMahon to adopt the model of the U.S. Department of Justice, where the headquarters in DC approves every major decision, and the regional offices are headed by a Presidential appointee.
She then needs to replace everyone in the regional offices. Offer them a lucrative early retirement package or a transfer to Washington where they can do something—just get them out of these offices because nothing is going to change with them there.
She needs to bring in new people, people who have legitimate academic credentials (i.e., terminal degrees) but who haven’t spent their lives in the academic or governmental bureaucracy—“no nonsense” people who will enforce the rules the way they are written and end this insanity.
One final question is cui bono? To whom is the current system a benefit? Do we really expect them to change it on their own?!?
Image of symbol used for the United States Department of Education created in 1980 by Maryland GovPics on Wikimedia Commons
Catherine Lhammon needs to be banned from ever holding a goverment position ever again.
The Ed Dept needs to coordinate with the new Justice Dept and start prosecuting the NEA under RICO.
Per one of my very well-connected DC sources, the incoming administration is bringing some serious bombthrowers into the DoEd, with strong instructions WRT what is illegal discrimination and how OCR is supposed to deal with it. (Chris Rufo has already been to Mar a Lago to brief PDT on how to eliminate DEI from not only higher ed, but the entire federal government.)
So I suspect the housecleaning Dr. Ed correctly says is necessary at OCR is coming.
Look for either an EO or a “Dear Colleague” letter informing schools that this administration views any program that discriminates in favor or against any person based on race, sex, ethnicity, etc., to be illegal under federal law, and accordingly their annual nondiscrimination certification (required for federal funds eligibility) must attest that the school has no such programs in admissions, hiring, tenure, promotions, funding, etc. (As there is no way the campus virtue signalers will give up either federal money or the DEI programs they consider to be moral imperatives, I suspect there will be a lot of false certifications filed.)
Another thing that is apparently being discussed by the folks about to move in at DoJ is whether the administration will give a green light to private qui tam actions under the federal False Claims Act against schools who sign the nondiscrimination certification but then continue affirmative action or DEI practices. (Under current law, DoJ can swoop in at any time and dismiss such qui tam actions, which understandably discourages people from filing them.)
If DoJ signals that it won’t interfere, look for lots of whistleblowers filing qui tam lawsuits seeking to recover 300% of the federal funds received by the school after a false nondiscrimination certification (with the qui tam relator entitled to a 25-30% finders fee) rather than OCR complaints. It will be a feeding frenzy once the plaintiffs’ bar understands that a lot of very deep-pocketed schools can be hit for many millions of dollars.
Please remind your DC sources that OCR is not like a real court — that its regional offices write settlement letters that become precedents that other institutions are required to follow. See, foe example, https://www.bazelon.org/wp-content/uploads/2017/01/7.18.08-Mount-Holyoke-OCR-Letter.pdf
Nothing is going to change until there are MAGA people in the REGIONAL offices because they can and do ignore the Secretary. Their settlement letters are regional precedents — that’s how I can so easily find this one 15 years later.
Second, qui tam suits won’t work because no attorney really wants to sue a university — they are not fluent in Education law to start with, and as much of it (e.g. FAPE) doesn’t apply to higher ed, they really don’t know what to do or where to start.
Now as to Justice itself bringing fraudulent claims suits, *that* would catch people’s attention.
Third, education and mental health are the only professions where “my professional judgement” is still admissible in court. An engineer has to explain why, an accountant has to explain why, a MD has to explain why, while the college can hide behind the cover of “academic judgement” which no court will second guess.
But please ensure that 47 understands that he can’t ignore the regional OCR offices.
And look into why Betsy DeVos’ proposal to restructure the accreditation process didn’t work — for some unknown reason, ED has to negotiate rule changes with the colleges…
Suffice it to say my sources include former senior DoEd people who are intimately familiar with OCR. Note that one of the EO’s Trump signed last night requires the removal of people (like the regional OCR folks) who choose the “resist” or otherwise act to frustrate the administration’s policies.
WRT qui tam cases, my sources also include some very, very serious and nationally-known litigators who have handled nine-figure qui tam cases. Some have been on the boards of major universities. All of them are very interested in going after universities that think they are above the law . . . . as long as they know DoJ won’t pull the rug out from under them.
We should not clean out the ED office for civil rights.
We should eliminate the Dept. of Education entirely.
Patti, the risk is making the perfect the enemy of the good.
First, we aren’t going to eliminate ED — Reagan tried over forty years ago when it might have been possible and even he couldn’t do it. We’re not going to win that fight — I propose one that we can.win.
Second, the problem is not the ED itself — the problems existed before Carter created ED in 1979 and would remain if it were abolished, and remember that Eisenhower created the Department of Health, Education, and Welfare — Carter just split it into two departments.
It was Lyndon Johnson’s “Great Society” that Federalized education in the 1960s and then K-12 unionization in the 1970s that created the NEA.
With almost 3 Million members, the National Education Association is the nation’s largest union. The NEA created ED and if we managed to abolish ED, the NEA would only create something worse somewhere else in the Federal bureaucracy.
Third, ED does do some needed and useful things. It compiles and maintains lists of things like contact information for state education departments that is incredibly useful to folks like me. It has conducted the NAEP since 1969 (ten years before ED existed), and the NAEP (and similar) data is like the IEEE specs and other engineering data.
ED created ERIC back in the days of microfiche and while it is a vast wasteland, there is a *lot* of valuable stuff in it, See: https://en.wikipedia.org/wiki/Education_Resources_Information_Center
Hence abolishing ED would be like abolishing the FBI — if either were not here tomorrow, the vacuum created would cause a lot of problems and we’d wind up with a bigger mess than we have now.
Not that I don’t agree with you — we do have a mess…
Agreed.
But an administration could turn the vast array of powers (especially federal funding, which most schools are utterly addicted to) that the DoEd has accreted over the decades against wokeism / CRT / DEI / Cancel Culture / groupthink in higher ed.
And that’s precisely what I expect we’ll see . . . .
As an aside — it is ED because the Department of Energy was first, and that’s DOE or DoE.