[updated] Dept of Education Heavily Censors Its Memo on Transgender Students’ Civil Rights


UPDATE [Sept 25, 2017]: My appeal was successful. The Education Department’s FOIA Appeals Coordinator completely reversed the initial decision and has released the memo in full, with no redactions. (You can read it below.) From the response letter:


In June, the Washington Post received a leaked memo from inside the Department of Education. In it, the acting head of the Office for Civil Rights (OCR) lays down new instructions for handling cases involving “discrimination, bullying, or harassment” of transgender students. The memo was sent to the OCR’s regional directors. The Washington Post reported:

The Education Department’s Office for Civil Rights has directed its lawyers to consider transgender students’ discrimination complaints on a case-by-case basis, according to an internal memo obtained by The Washington Post, which makes clear that lawyers may decide to dismiss complaints related to the polarizing issue of transgender students’ access to school bathrooms.

Candice Jackson, acting head of the civil rights office, said she sent the memo to clarify that transgender students may still have valid discrimination complaints even though the Trump administration withdrew guidance specifying that they have a right under federal law to use school bathroom and locker room facilities corresponding to their gender identity.

“This guidance says that OCR gets to pick and choose which cases it will open, and it could be appropriate to dismiss for lack of jurisdiction an allegation that a transgender student is not able to access a bathroom consistent with their gender identity,” said Catherine Lhamon, who led the Office for Civil Rights under President Barack Obama and now chairs the U.S. Commission on Civil Rights. “That is not an option under the law, and OCR does not have the option to pick and choose the cases it wants to open.”

The leaked copy received by the Post was completely unredacted, of course. I decided to request the memo under the Freedom of Information Act. Call it an experiment.

As jaded as I am, I still wasn’t expecting the result of my FOIA request – two pages, out of two and a half, are completely blanked out.

The Education Department’s FOIA office invoked exemption b(5) for these blanket redactions. B(5) – one of the vaguest, widest, and most abused of exemptions – allows agencies to withhold interagency or intra-agency communications that are “predecisional” and “deliberative.” Because we know exactly what was blanked out, it’s hard to see this as anything but blatant overreach and a too-late attempt to keep important public information from the public.

Immediately below, I’m posting the two versions of the memo side by side. Below that, for easy reading, I’m posting both versions of the memo as full-size images.

I’ve already filed a FOIA appeal.

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