Since taking the helm at the Department of Education, Betsy DeVos has put together a who’s who of for-profiteers, regulatory rollback artists and civil rights skeptics. But her latest hire, conservative attorney Hans Bader for a job in the Office of General Counsel at the Department of Education, may be the most alarming so far. The appointment of Bader—and what we know of his most recent work as senior counsel at the Competitive Enterprise Institute (CEI), a libertarian think tank, from 2003-2017 as well as his past work as senior counsel at the conservative Center for Individual Rights (CIR)—raises multiple red flags about the ongoing love affair between extreme right-wing ideology and corporate influence in the Trump administration. Here are seven reasons why this latest hire may be DeVos' scariest yet.
1. Thought Trump’s Education Cuts Didn’t Go Deep Enough
Bader supports Trump’s move to cut the Department of Education’s discretionary budget by $9.2 billion, calling the cuts “necessary and long overdue.” Writing for CEI’s blog in June, Bader also endorsed Trump’s plan to cut $1.8 million from the Education Department’s Office for Civil Rights (OCR). By arguing that the OCR under Obama wasted money investigating “largely duplicative complaints,” and directly accusing the Obama administration of going on politically-motivated witch hunts to “searc[h] for a violation until it found one, even if it didn’t involve any discrimination or harassment,” Bader engages in the common right-wing tactic of minimizing civil rights violations and downplaying the discrimination that so many marginalized students—such as people of color, women, LGBTQ students, and Muslim students—are subjected to daily.
Bader’s critical remarks about searching for violations adds an extra touch of hypocrisy given CIR’s reported instructions to white students to sue their campuses over affirmative action “even if they had no proof that they were being discriminated against,” according to Theodore Cross in The Journal of Blacks in Higher Education.
2. Attempts to Mainstream Bigotry
Bader, in a blistering 2014 oped, decried the fact that “to many liberals, commonplace conservative views qualify as ‘hate speech’ … such as criticizing feminism or affirmative action, or discussing homosexuality or the racial implications of the death penalty.” In a political climate where an admitted sexual predator is President, where white Americans are more outraged over Black NFL players protesting anti-Black police brutality and murder than they are over the slaughter of Black people, and where Trump reportedly “jokes” that Vice President Mike Pence “wants to hang” all gay people, Bader’s attempt to normalize oppressive rhetoric as “commonplace” “discussions” is disturbing.
But it doesn’t stop at Bader’s oped statements. CEI has, despite its ostensible commitment to “individual rights,” fought allowing gay men to serve as Boy Scout leaders and challenged the Voting Rights Act, helping strike down one of its provisions in 2013 through the disastrous Shelby County v. Holder Supreme Court decision. CIR is also currently representing Christian Educators Association International, who, according to The American Prospect, “is virulently opposed to LGBT rights, and its website includes a statement accusing public schools and the National Education Association (NEA) of promoting ‘the homosexual agenda.’”
3. Attacks Affirmative Action
Bader has gone on the record against affirmative action, writing in 2016, “Race-based policies are social engineering … They are also illegal, under any fair reading of the law.” What this hints about the Department of Education’s role in addressing racism and structural inequality is distressing.
Bader’s attacks on affirmative action are sadly no surprise given the track record of CIR on this issue. CIR has long been engaged in a concerted effort to maintain white supremacy in higher education, with a history of litigating numerous cases in multiple states against affirmative action, even placing advertisements in at least fifteen campus newspapers with instructions on how students should go about suing their universities.
This type of willfully obtuse argument, that white students are secretly the victims of racism, is typical of right-wing agendas that seek to excuse white people from their culpability in racism, bolster the myth of meritocracy, and promote the idea that people of color who protest racial discrimination are irrational liars. In so doing, right-wing rhetoric reframes racial justice, and efforts to ameliorate the systemic oppression faced by people of color, as “reverse racism.”
Theodore Cross reported in 1999 that CIR “projects itself as a champion of the persecuted, a white knight whose goal is to expunge the cancer of affirmative action that is eating away at our nation's academic standards.”
Through the use of litigation, skewed public statements, and racist fear-mongering, CIR seeks to “ethnically reenginee[r] college admissions procedures in a way that would remove most African Americans from our leading colleges,” writes Cross. “The goals of the Center appear to be far less concerned with equal treatment of the races than with guarding the interests of segregationists and protecting the established economic and class advantages that enable whites to maintain their superior access to the leading colleges in the United States.”
In fact, according to The Nation, CIR at one point accepted money from the Pioneer Fund, which researches “the genetic superiority of whites.”
4. Thinks Students of Color Get Suspended More Often Because They’re Bad Kids
A growing body of research indicates that students of color are far more likely to be disciplined than their white counterparts, a disparity that begins as early as preschool. Students of color are also disproportionately dealt the harshest exclusionary penalties: expulsions and out-of-school suspensions. What’s behind the discrepancy? As Bader argued in a column for the Daily Caller, “Black suspension rates reflect higher rates of misbehavior among Blacks, not zero-tolerance policies.” In recent years, a growing consensus has emerged regarding the devastating impact of harsh discipline on students of color. Critics of zero tolerance discipline are right to be very concerned about Bader’s selection.
5. Supports Dismantling Obama-Era Sexual Assault Campus Guidelines
Bader, in the tradition of DeVos’ recent rollback of Obama-era guidelines for fighting campus rape culture, indicates that he is a champion for those accused of sexual violence, and he worries that President Obama’s landmark Title IX guidance gave too much leeway to the needs of campus sexual violence survivors (if only that has ever been true!). He wrote in a CEI oped from September, “These bureaucratic decrees heavily intruded into how schools handle complaints of sexual harassment and assault, banning the clear-and-convincing evidence standard, restricting cross-examination rights, and restricting the appeal rights of accused people.”
Failing to center the needs of survivors is tantamount to denying how urgently rape culture needs to be addressed. After all, as we know, the rate of sexual violence against college women is staggeringly high (at least one in four), 2 out of every 3 sexual assaults go unreported to the police for multiple reasons, the rate of false reports of sexual violence is 2% according to the FBI (the same rate as for other felonies), and out of every 1,000 rapes, 994 rapists avoid incarceration.
In other words: rape culture is real. Yet Bader’s published views up this point indicate that sexual violence survivors will certainly not be able to look to the Department of Education as an advocate or a model for how to have a survivor-positive, zero-tolerance policy on campus sexual violence.
6. Thinks College Should Be Left to the Haves
Bader, like his new boss, downplays the reality and severity of the student loan crisis. Attacking the federal Pay as You Earn Program, which provides a basic lifeline to millions of Americans struggling with student debt by offering an option for borrowers to pay no more than 10% of their income in student loans each month, Bader wrote, “[Pay as You Earn] will cost taxpayers a lot, while doing nothing for most student borrowers (who will experience tuition increases as a result), and it will favor imprudent borrowers over prudent borrowers.”
“Prudent” borrowers, according to Bader, apparently include students who “chose inexpensive colleges or borrowed modestly,” while “imprudent” borrowers consist of those who “borrowed much more than [$27,000] for useless majors.” As for low-income and first-generation students who have little to no family wealth to draw upon in order to attend college, or pursue costly advanced degrees, Bader doesn’t have much to say about them.
In a 2008 blog post for CIR he affirmed the argument made by Charles Murray that for most people, college is a waste of time. Added Bader, “People with low IQs gain even less from college. Send a stupid person to college, and you get a stupid liberal as a result.”
7. Promotes Climate Change Denial
On the subject of climate change, Bader used an economic angle to defend Exxon in 2016, writing sardonically that “Exxon had the temerity to note that policies advocated by climate change activists have real world costs, and may not be politically viable.”
It’s important to follow the money when analyzing Bader’s positions. According to a 2015 report by The Guardian, CEI received $4.3 million over a period of three years—that is to say, during Bader’s tenure as CEI senior counsel—from Donors Trust, a “donor-advised fund” that Mother Jones called a “Dark Money ATM” for the right wing. According to Suzanne Goldenberg and Helena Bengtsson at The Guardian, Donors Trust, along with Donors Capital Fund, allow original donors’ names to be cloaked in secrecy and helped build “a network of thinktanks and activist groups” that fund climate change denial and attacks on environmental regulation.
CEI, meanwhile, declare on their website that they “questio[n] global warming alarmism.” They have sued both the Obama White House and climate scientists for educating the public on scientifically accepted information about the dangers climate change poses for the planet. Given Bader’s appointment to a department that should support honest scientific inquiry about our precious and finite planet, regardless of whether the findings lead to politically inconvenient truths, this is quite an eyebrow-raising track record.
The GOP will undoubtedly work to normalize Bader’s image as a prolific conservative attorney with many laurels, and he is indeed accomplished. But just as we must refuse to normalize the ways that the Trump administration has embraced the most extreme fringes of their political coalition and assisted in their rise to power—all while Trump launches open attacks on various members of his own party daily—so too must we keep our eyes and ears open about what Hans Bader truly represents. His vision for America, and his vision for influencing the educational policies impacting our youth, are not conducive to the progress or diverse spirit of this nation.
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