The Department of Education rushed to take up an investigation over an anti-trans complaint filed by female athletes in Connecticut without having a solid understanding of the legal framework to accept jurisdiction, according to emails leaked exclusively to the Washington Blade.
The emails detail a behind-the-scenes exchange among officials in the Education Department’s Office for Civil Rights just before announcing it would take up the investigation, which was in response to a complaint filed by Alliance Defending Freedom on behalf of three female track athletes seeking to challenge Glastonbury School District’s trans-inclusive policy.
In one email dated Aug. 5, Lisa Chang, an enforcement director within the Office for Civil Rights, says she “just met” with Deputy Assistant Secretary for Enforcement Randolph Wills.
With urgency, Chang says, “We must have a draft LON for Ken’s review tomorrow.”
That email was sent just two days before the Education Department ultimately announced on Wednesday it would take up the case.
Chang also responds to concerns raised by Michelle Kalka, a supervisory advisory attorney, who in a July 26 email says the Education Department still needed a response to a consent request from ADF “to issue even a partial (or ‘stop-gap’) notification letter on any systematic or individual allegation.”
But Chang, underscoring a sense of urgency, says she understands from Assistant Secretary of Education for Civil Rights Kenneth Marcus the Boston office “has cleared up the consent issue” and another official is looking into the timeliness issue for the complaint.
“Can you please confirm the status and advise?” Chang says. “I will need to see a draft LON by this afternoon, say 4 pm or so.”
In another email dated Aug. 7, Chang attaches a draft copy of the letter of notification and says it “must issue today.”
Ramzi Ajami, a general attorney in the Boston office, affirms the department “will issue this evening,” but seeks clarification.
“We’d appreciate a discussion about the legal theory, and much simpler, the timeframe/scope of the investigation,” Ajami says. “We noticed that the ultimately allegations were not dismissed.”
The exact issue with regard to legal theory is unclear. It might be related to whether the Department of Education has jurisdiction over the Connecticut Interscholastic Athletic Conference, which instituted the trans-inclusive policy.
The legal theory issue may be related to challenging a school’s trans-inclusive policy under Title IX of the Education Amendment of 1972, which bars sex discrimination in public schools. Transgender advocates have drawn on that law to assert protections for transgender kids, but ADF is turning that argument on its head.
With regard to timeliness, it’s also hard to see which aspects of the case Ajami was referencing. Each of three points in the letter that ultimately went out references issues that took place within the last six months, even the accusations of retaliation from school officials over students complaining about the pro-trans policy.
Six months is the cutoff point for when the Department of Education will accept complaints from students, unless that time is extended for good cause by the enforcement office director.
An informed source said the Education Department apparently sidestepped the untimely allegations. A notification letter, the source said, typically includes allegations, including those dismissed as untimely.
The official letter went out that day with no reference whatsoever to any issue the Education Department refused to take up for a lack of timeliness or jurisdiction. In fact, the letter says the Office of Civil Rights has “determined that it has jurisdiction and that the allegations were timely filed.”
In a third email dated Aug. 8 — the day after the official letter went out — Chang sends a follow-up message to Ajami about data requests, saying further discussion on legal framework will come at a later time.
“At this stage, we are collecting raw data that might be relevant,” Chang says. “We can talk in the future about the precise legal framework to apply.”
An informed source said the Department of Education has a theory of jurisdiction for the case, but that theory is questionable and wasn’t — and perhaps still isn’t — settled prior to the decision to open an investigation.”
“Headquarters typically doesn’t get involved this early in a case and typically doesn’t send emails demanding that notification letters go out ASAP,” the source said. “This is so abnormal.”
An Education Department spokesperson said in response the Office of Civil Rights “does not authenticate records received from third parties.”
“Because these are open investigations, however, OCR cannot provide additional information about the investigations, confirm details about the cases, or provide a timeline for the completion of the investigations,” the spokesperson said. “The length of time that it takes to resolve an investigation depends on many factors, including the number and complexity of the issues under investigation.”
The spokesperson said a variety of factors go into determining pursuit of an investigation.
“Many of OCR’s investigations involve complex legal issues and are very fact-intensive, and OCR must examine all relevant facts, data and other information before making a compliance determination regarding the civil rights laws it enforces,” the spokesperson said.