Bostock demands a complete change of course from neutered judicial “conservatism.”
Stop “Civil Rights” Abuse
States must block the federal government from countermanding localities with fake constitutional protections.
In late August, as students headed back to school, the Biden Department of Education made clear to parents what close observers had predicted: this administration defines “civil rights” as “whatever the left happens to prefer.”
Secretary of Education Miguel Cardona announced that his Office for Civil Rights (OCR) would investigate five states that have prohibited universal mask mandates. He declared that these investigations would explore whether such prohibitions violate Title II of the Americans with Disabilities Act (ADA) and interrogate “each state’s compliance with Section 504 of the Rehabilitation Act of 1973,” which guarantees people with disabilities “an equal opportunity to receive program benefits and services.”
The Biden administration, it seems, believes that a student has a civil right to have his school board force his peers to wear a mask.
This is a willful and arbitrary exercise of power, and a revealing one. If the political polarity of masking were reversed, one could easily imagine the Biden administration arguing that mask mandates discriminate against students with disabilities—students like Daniel Volodin, who has autism and epilepsy and is being denied in-person instruction by the Abermarle County school district because he is unable to wear a mask all day.
That argument would, in fact, have greater merit than the grounds cited by the Biden administration. No “investigation” should be necessary to determine the legal question of whether prohibiting a mask mandate violates Title II of the ADA. It either does or it doesn’t.
Furthermore, by promising to probe states for general compliance with Section 504 of the Rehabilitation Act of 1973, the Biden administration is all but promising open-ended harassment expeditions that would levy threat of losing federal funding until states change their masking policies.
This is nothing new. It has become tradition for Democratic administrations to use the Department of Education’s Office for Civil Rights as a forward operating base for culture war aggression. It’s what the OCR did during the Obama years under the leadership of Catherine Lhamon, whom Biden has also nominated to lead that office. Under Obama, the OCR weaponized Title IX to coerce colleges to set up kangaroo courts to process sexual assault allegations that undermined due process. The OCR then weaponized Title VI to coerce school districts to adopt lenient discipline policies that destabilized classrooms and endangered students.
Up until this point, conservatives remained rather muted in opposition, partly because the left could make a plausible rhetorical case linking their policy initiative to civil rights law, and partly because, especially in the case of school discipline policy, journalists maintained a false insistence that OCR “guidance” didn’t have force of law. But the gambits succeeded largely because the words “civil rights” provide talismanic protection for any abuse of power. Conservative politicians fear, with justification, that their criticism will be labeled by the media and by liberal politicians as racist, sexist, or transphobic.
The political headwinds were compounded by the difficulty of resisting an act of administrative fiat. When OCR re-interprets longstanding statute as grounds to enforce new policy preferences, it creates a legal grey zone.
If OCR were formally to find a school district in violation of civil rights law, the district could win an appeal on the grounds that the alleged violation was based on a unilaterally invented legal interpretation. But under the Obama administration, the OCR bombarded school districts with heavy-handed investigations, which continued even if the initial claim was found false, until districts “voluntarily” agreed to adopt the Department of Education’s preferred policies.
There is a substantial risk that these political and administrative headwinds may again cow conservative state and local leaders. But perhaps there is more reason for optimism this time. If any action could spur the reaction necessary to protect state and local autonomy, it is this mask mandate.
Governors and attorneys general in the states under investigation should do something radical, which prior to the pandemic would have sounded unthinkable: direct their state and local education agencies to refuse to cooperate with these bogus, abusive civil rights investigations and promise to take the Biden administration to the Supreme Court if it tries to withhold federal funding.
Attorneys general in all states should instruct school districts to share all correspondence between the OCR and local school districts. State legislatures should consider funding a dedicated official within the state superintendent’s office to whom school districts can appeal if they believe that OCR is weaponizing traditional civil rights investigations. State AGs should send a clear message to the Biden administration that in any such case, it will direct non-compliance with the investigation and will sue the Secretary of Education if a school district is penalized.
Such an action would still, of course, prompt outraged outcries from some journalists and advocacy organizations. But that is a small price to pay next to the long-run cost—to kids and country—of conservative acquiescence to the principle that “civil rights law,” however broadly and unilaterally defined, permits the federal government to enforce the left’s policy whims.