When the U.S. Senate confirmed Dr. Miguel Cardona as President Joe Biden’s Education Secretary in March 2021, legislators handed him a huge stinking mess, courtesy of his predecessor Betsy DeVos. During her tenure under former President Trump (which ended after the January 6 insurrection) she pillaged Obama-era civil rights protections for transgender students, students of color, college-age sexual assault survivors, and students with disabilities. Jeff Goldberg, the Atlantic’s editor-in-chief, labeled this pattern the “Fuck Obama” Doctrine.
High on Cardona’s to-do list, then, is restoring those civil rights to some of our most at-risk citizens. Four months into his promotion from commissioner of Connecticut to the highest educational office in the land, it’s time for his mid-term grades.
To be fair, we should grade him on a curve; after all, the labyrinthine process required to reinstate those protections takes time—and sometimes the cooperation of a polarized U.S. Congress. And it’s a group effort because President Biden and Secretary Cardona appear to have worked out a successful two-step process:
First the president issues an executive order.
Then the secretary uses the order to reverse the damage done by his predecessor.
Let’s check out their progress.
Protections for Gender Diversity
In 2017 DeVos rolled back Obama-era guidance that allowed transgender students to use bathrooms and locker rooms corresponding with their gender identity. In addition, Trump’s Health and Human Services Department redefined gender as “either male or female, unchangeable, and determined by the genitals that a person is born with,” and eliminated nondiscrimination protections based on gender identity. (Stephen Colbert doing an impression of Trump: “I haven’t reviewed the science of climate change, but I am very interested in what science has to say about baby junk.”)
During his campaign, Biden promised to reinstate the guidance from his old boss, and on Inauguration Day he signed an executive order preventing discrimination on the basis of gender identity or sexual orientation.
Then in June the U.S. Department of Education's Office for Civil Rights issued a “Notice of Interpretation” explaining that students’ Title IX rights, which prohibit discrimination on the basis of gender, are once again restored and students now have access to bathrooms and locker rooms based on their gender identity. Cardona said in a statement,
Today, the Department makes clear that all students—including LGBTQ+ students—deserve the opportunity to learn and thrive in schools that are free from discrimination.
In 2014 the Obama administration issued guidance intended to help schools avoid racial disciplinary disparities. Students of color, particularly Black boys, are disproportionately disciplined compared to their white peers—four times as likely according to the U.S. Office for Civil Rights.
Predictably, DeVos rescinded that guidance, one reason why President Obama’s former Education Secretary John King Jr. recently called her a “disaster” for both K-12 and higher education.
Following the same strategy as with gender identity, Biden’s first move was to quickly issue an executive order on his first day as president, titled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” This order directed federal agencies to examine how their policies address and promote racial equity.
To move the two-step process along, on June 4, Cardona’s Education Department announced it will seek public comment on “how best to support and build schools’ capacity to promote positive, inclusive, safe, and supportive school climates in a nondiscriminatory manner.”
The endgame here, of course, is to restore proportionality to school discipline processes so that children of color are treated equitably.
Sexual Violence Protection
We often think of Title IX in the context of girls having equitable access to sports, but it is also the linchpin for policies that guide due process when college students are sexually assaulted.
We’ll let 278 student survivors explain, in an excerpt from a March 2021 letter they wrote to President Biden, published in Teen Vogue:
When previous Education Secretary Betsy DeVos took office, she did everything in her power to roll back the rights of student survivors and make it easier for schools to dismiss pervasive sexual violence. In doing so, Secretary DeVos furthered a culture of impunity that allowed administrators at all levels to effectively push survivors out of school and make campuses less safe. Now, thanks to DeVos’ anti-survivors Title IX rule, schools can ignore certain survivors’ complaints of sexual violence with little consequence.
Shortly after that letter was printed, President Biden issued an executive order that says, in part,
... as soon as practicable, and as appropriate and consistent with applicable law, the secretary of education shall review existing guidance and issue new guidance as needed on the implementation of the rule described in subsection (a)(i) of this section, for consistency with governing law, including Title IX, and with the policy set forth in section 1 of this order.
Two months later on June 23 (which happened to be the 49th anniversary of the passage of Title IX), Secretary Cardona issued a letter referencing a series of hearings held earlier that month, putting schools and colleges on notice that the Office for Civil Rights (under the Education Department’s purview) “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive federal financial assistance from the Department.”
Students with Disabilities
In October 2017, the same month DeVos rolled back civil rights for transgender students, she rescinded 72 guidance documents that protect students with disabilities. In March 2018 she loosened guidelines on preschoolers’ rights to education in the “least restrictive environment,” and announced a two-year delay in implementing a rule created at the end of the Obama administration called “significant disproportionality” which seeks to “create a uniform national standard to make sure that students from minority backgrounds are not overrepresented in special education.”
Unlike in the cases above, President Biden hasn’t issued an executive order specific to special education. But his administration’s proposed budget for 2022 provides a needed boost to funding for the federal law called the Individuals with Disabilities Education Act, or IDEA.
We think it is past time for the Federal Government to make good on its commitment to students with disabilities and their families, as expressed in the Individuals with Disabilities Education Act. The President's request makes a significant move toward full funding of the IDEA ... Notably, this increase would raise the Federal share of the excess cost of serving students with disabilities for the first time in 8 years—demonstrating that IDEA has been yet another casualty of the Federal underinvestment in education over the past 10 years.
Cardona added that the Biden administration’s plan is to increase funding for early intervention services, which serves infants and toddlers with disabilities through age 3, with an emphasis on young children of color who have been “historically underrepresented.”
So, how is the Biden administration doing on reversing the damage done during the Trump/DeVos era? It’s too early for a final assessment. There’s still so much to do as we fight to emerge from a pandemic that has dramatically exacerbated inequities among these four marginalized groups of young people.
But President Biden and Secretary Cardona deserve high interim grades as their two-step process for reversing DeVos’s damage starts to produce protections for those who need it most.
Laura Waters is the founder and managing editor of New Jersey Education Report, formerly a senior writer/editor with brightbeam. Laura writes about New Jersey and New York education policy and politics. As the daughter of New York City educators and parent of a son with special needs, she writes frequently about the need to listen to families and ensure access to good public school options for ...