Vocal Critic of Office for Civil Rights Is Likely to Lead It

Leading conservative activists are predicting that the Trump administration will put a prominent critic of the Education Department’s Office for Civil Rights in charge of it, to scale back its efforts.

Although the White House has yet to tip its hand on its pick as the department’s assistant secretary for civil rights, speculation among plugged-in Republicans whose views have influenced other cabinet picks centers on two well-known conservative figures: Gail Heriot and Peter N. Kirsanow.

Both Ms. Heriot and Mr. Kirsanow are members of the U.S. Commission on Civil Rights who recently have accused the department of overreach in dealing with sexual assault and the rights of transgender students on college campuses. Both also have been vocal critics of colleges’ consideration of race in admissions and student housing.

Of the two, Ms. Heriot, a professor of law at the University of San Diego, may be most likely to get the nomination. That’s partly because Mr. Kirsanow, a labor lawyer in Cleveland, has a broad background that places him in the running for an array of other federal positions. That Ms. Heriot is a woman also could work in her favor, as the Trump administration might see her sex as giving her a measure of political cover in carrying out one of its top priorities for the civil-rights office — reducing the office’s guidance on Title IX, the federal gender-equity law.

More than 240 activists and college faculty members, nearly all conservative or traditionalist in their views, have joined the National Association of Scholars and six other organizations in sending Trump-administration officials a letter endorsing Ms. Heriot as assistant secretary. Among its signatories are Ward Connerly, president of the American Civil Rights Institute and organizer of several campaigns for state ballot measures that banned race-conscious admissions at public colleges; Donald A. Downs, an emeritus professor of political science at the University of Wisconsin at Madison and prominent First Amendment scholar; Harvey Silverglate, a co-founder of the Foundation for Individual Rights in Education; and Eugene Volokh, an influential blogger and professor of law at the University of California at Los Angeles.

“Professor Heriot has a demonstrated commitment to restoring control over public education to state and local authorities. She also believes a free people must be governed by their elected representatives, not by OCR bureaucrats,” the letter says. The document was drafted and circulated by Save: Stop Abusive and Violent Environments, an organization that argues that the Obama administration’s guidance to colleges on sexual assault has prompted them to trample the due-process rights of accused students.

Officials of civil-rights organizations such as the Feminist Majority Foundation hesitated on Thursday to comment on either potential candidate, saying they had not examined them enough to take positions. But with much of the opposition to Secretary of Education Betsy DeVos, who was narrowly confirmed, having come from such groups, it’s no leap to expect that either Ms. Heriot or Mr. Kirsanow would face a tough confirmation battle.

Liz King, director of education policy for the Leadership Conference on Civil and Human Rights, said her coalition of more than 200 advocacy groups took the position that “an individual is not qualified to serve in this role unless they have a demonstrated record of support for the nation’s civil-rights laws and the students and communities protected under those laws.”

S. Daniel Carter, a member of the board of SurvJustice, an advocacy group for survivors of sexual assault, said in an email that either nomination would signal an intent to rein in the department’s guidance on sexual violence.

Need for ‘a Spine’

Ninio Fetalvo, an assistant press secretary at the White House, declined this week to comment on the search for a new head of the civil-rights office.

The Turbulent Nomination of Betsy DeVos

President Trump’s choice of Betsy DeVos, a philanthropist and generous donor to many conservative causes, to be his secretary of education aroused some of the strongest opposition of any nominee for the Trump cabinet.

• In New Profile, DeVos Blames Staff for Rocky Confirmation Hearing
• How Much Power Does Betsy DeVos Really Hold to Shake Up Higher Ed?
• Betsy DeVos Survived a Historic Confirmation Fight. What’s Next for Higher Ed?

In an email last week, Ms. Heriot said she had not talked with Ms. DeVos or anyone else in the Trump administration over the position. “For all I know, a decision may already have been made,” she wrote. “I really don’t know much of anything about this process.”

In separate emails on Thursday, Ms. Heriot wrote, “I still haven’t heard a word from anyone within the administration.” She added: “I’m certainly willing to talk about it with Secretary DeVos. I understand that a number of people have recommended me.”

Mr. Kirsanow is among the signatories of the letter recommending Ms. Heriot. In an interview on Thursday, he said he probably would turn down the job if offered it.

“I may have told some people inside the administration that Gail Heriot is perfect for the job,” Mr. Kirsanow said. “My hope is that the administration considers her very seriously. She would be great.”

Among the conservative activists who speak highly of both Ms. Heriot and Mr. Kirsanow as candidates for the job is Roger Clegg, president of the Center for Equal Opportunity, which opposes race-conscious admissions policies. He called both “excellent choices,” saying they are well versed in the relevant law and “willing to stand up for conservative principles.”

“This is not a position where it is a good idea for people to learn on the job or to figure out what they think about these issues on the job,” Mr. Clegg said. “The person also needs to have a spine because they are likely to have a lot of pushback if they do the right thing.”

2-Person Team

“Gail Heriot and Peter Kirsanow both have been outspoken, and have been very candid in expressing their views. That means they have a record of positions that they have taken,” said Kenneth L. Marcus, who was acting assistant secretary for civil rights under President George W. Bush and is now president of the Louis D. Brandeis Center for Human Rights Under Law, which focuses on protecting the civil rights of Jewish people.

As members of the U.S. Commission on Civil Rights, an eight-member, independent federal panel, Ms. Heriot and Mr. Kirsanow have worked in tandem in staking out some of their most controversial positions.

In February 2015, for example, the two joined in sending congressional leaders a letter — not endorsed by the commission or any of its other members — that urged the rejection of a 31-percent increase in spending on the civil-rights office contained in the Obama administration’s proposed budget for that year.

Citing enforcement efforts recently undertaken by the office under President Barack Obama, they argued, among other things, that its guidance on sexual assault and harassment had encouraged colleges to trample students’ due-process and free-speech rights.

The office “has all too often been willing to define perfectly legal conduct as unlawful,” the letter argued, asserting that “its resources have been stretched thin largely because it has so often chosen to address violations it has made up out of thin air.”

Under the Bush administration, both Ms. Heriot and Mr. Kirsanow joined conservatives, who then held a majority on the commission, in urging federal and state officials to require law schools to issue detailed reports about race-conscious admissions and the success of their minority students.

The two also have helped push the commission to investigate whether men get preferences in college admissions and whether race-conscious admission policies leave minority students who pursue science degrees vulnerable to academic failure. Both signed briefs urging the U.S. Supreme Court to strike down a race-conscious undergraduate admission policy at the University of Texas at Austin.

More recently, Ms. Heriot and Mr. Kirsanow issued a strongly worded rebuttal last year to a Commission on Civil Rights statement condemning several state measures as attacks on the rights of people who are gay, lesbian, bisexual, or transgender. Acting independently and not representing the commission, they also urged the Office for Civil Rights to investigate the legality of residential communities geared toward minority college students, and warned the University of Connecticut that its plans for such a community might violate the law.

‘A Terrible Lesson’

Ms. Heriot, who identifies as a political independent, was first appointed to the U.S. Commission on Civil Rights in 2007, and is now in her second six-year term.

She gained a high profile in civil-rights debates by helping lead the successful 1996 campaign on behalf of California’s Proposition 209, which barred public colleges there from using racial preferences in admission, contracting, or hiring decisions. In 2006 she was involved in an effort to oppose the American Bar Association’s plan to base its accreditation of law schools partly on their efforts to promote diversity in their faculty and student bodies.

Last May, in testimony delivered to the House Judiciary Committee’s Task Force on Executive Overreach, Ms. Heriot harshly criticized the Office for Civil Rights’ guidance on sexual assault as well as a recently issued letter, from the civil-rights office and the Justice Department, that offered educational institutions guidance on serving transgender students.

The letter had interpreted Title IX as requiring educational institutions to let transgender students use bathrooms or locker rooms that match their gender identity. Ms. Heriot argued that Title IX dealt with sex, not gender, and said the federal government had engaged in overreach in requiring federally funded educational institutions to accommodate students’ gender identities and treat those identities as their actual sex.

“We are teaching young people a terrible lesson,” she argued. “If I believe that I am a Russian princess, that doesn’t make me a Russian princess, even if my friends and acquaintances are willing to indulge my fantasy.” She went on: “I should add that very few actual transgender individuals are confused in this way. They understand perfectly that their sex and their gender do not align. Some choose surgery to make their bodies better align with their gender. Most choose not to.”

Rep. Zoe Lofgren, a Democrat from California, told Ms. Heriot, “I think you are a bigot, lady. I think you are an ignorant bigot.”

Mr. Marcus of the Brandeis Center called Ms. Heriot “an exceptionally smart constitutional and civil-rights lawyer who knows the OCR issues backwards and forwards and would be able to hit the ground running.”

Mr. Kirsanow, for his part, met President-elect Trump and his transition team in November, and said their conversation focused mainly on issues related to labor and employment. He served on the National Labor Relations Board in 2006 and 2007, and is in his third six-year term on the U.S. Commission on Civil Rights.

Mr. Kirsanow came under criticism from other commission members in 2004, when one of his assistants used commission letterhead in sending 40 colleges a survey asking for in-depth information about their affirmative-action policies. Mary Frances Berry, who was then the commission’s chairwoman, urged colleges not to respond to the survey, which none of the panel’s other members had approved distributing.

Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.