Since 1974, school districts have been required by the U.S. Equal Employment Opportunity Commission to collect and report data on their employees' race, ethnicity, sex and activity assignment classification under the EEO-5, or the Elementary-Secondary Staff Information Report.
The required tracking of demographic data for districts with 100 or more employees may soon come to an end under a proposal by the Trump administration, which is expected to be finalized after its public comment period closed last month.
The data gave the government a snapshot of school districts' job patterns for racial minorities and women in public schools, helped inform the public and researchers, and was sometimes used to bolster civil rights investigations and enforcement. It is typically collected every two years.
Various other sectors require employers to complete a version of the data collection — which is mandated under Title VII of the Civil Rights Act — and those other collections are also facing the chopping block alongside the EEO-5.
In July, the EEOC proposed ending the reporting, saying the collections may be "inconsistent with the law, no longer useful to enforce anti-discrimination laws, or counter to the EEOC's enforcement priorities."
Although the decades-old collection was meant to help provide equal opportunities for minorities and women under civil rights laws, the Trump administration said in its proposal that the data "may encourage employers to discriminate against employees who are not considered 'minorities,' may promote racial stereotyping, and may encourage employers to engage in discrimination to avoid potential EEOC enforcement actions or to address perceived inequitable outcomes."
The reporting requirement, EEOC said, "may have the unintended effect of promoting, rather than reducing, discrimination because of the mistaken view that it is permissible to take race and sex-based actions to correct statistical imbalances.”
The proposal also suggested an employer could mistakenly believe the lack of a statistical imbalance means EEO law hasn’t been violated, resulting in the employer failing its responsibilities to prevent and address discrimination.
The proposal is part of a broader push by the Trump administration to curb alleged discrimination against White, male and other majority groups that it says are being discriminated against by diversity, equity and inclusion efforts meant to level the playing field for racial minorities and other historically underrepresented groups.
The proposal received more than 2,800 public comments from civil rights groups, labor and education associations, and members of the public, many of which criticized the suggested reporting rescission.
Regulations vs. their rescission: Which one is inconsistent with law?
The National Education Association, in an Aug. 24 comment, said it opposed the proposal to eliminate EEO-5 reporting.
"The absence of EEO data will not eliminate disparities in employment, including in the education sector," said Daaiyah Bilal-Threats, senior director of the Education Policy and Implementation Center at NEA. "Instead, it will make those disparities more difficult to identify, investigate, and remedy."
Bilal-Threats called the administration's move "inconsistent with the purpose of federal civil rights enforcement" and said it is difficult to identify systemic discrimination through individual complaints.
On the other hand, Defending Education, a conservative grassroots organization that has pushed for parental rights laws and supports the Trump administration's proposed change, said that although Title VII prohibits employment decisions based on race, the race and gender reporting "has the opposite effect.”
"The EEOC reporting requirements — untethered to any remedial purpose — create the perception that employers are expected to produce workforces whose compositions meet certain demographic benchmarks," the group said in its Aug. 21 comment. "Many employers use the EEOC reporting requirements to establish diversity goals, measure employees for promotion and hiring based on demographic outcomes, justify race-conscious hiring, promotion, internship, fellowships, and mentorship programs, and promote their resulting demographics to investors and the public."
One public commenter who identified herself as a public education employee and Afro-Latina woman said that instead of eliminating the reporting system, EEOC should streamline reporting and consider modernizing its collection to "reduce burden while preserving essential information."
"Collecting information is not the same as discriminating, and disparities do not automatically prove discrimination. But without data, our ability to determine whether equal opportunity exists is weakened," she said. "You cannot effectively measure equality by deciding not to measure it."
What will the rescission mean for districts?
Despite pushback to the proposed rescissions, it's likely that they will go through, said Jennifer Sandberg, regional managing partner for consulting firm Fisher Phillips who has worked with employers on DEI and EEOC compliance. Future administrations seeking to resume this collection would have to go through separate rulemaking procedures, she said.
"The rules were implemented really to help the government track diversity, and that's exactly why they're now being undone," said Sandberg. Some uses of the data could include tracking workforce changes over time, comparing it to census community data, and comparing it to applicant data to make sure there aren't disparities in hiring.
"The Trump administration perceives that employers have been overly aggressive with trying to have a diverse workplace to the detriment of people who are more traditional majorities," Sandberg said, adding that this is a new and abrupt approach under the current administration compared to previous ones.
From a logistical perspective, the reporting change would mean less paperwork for districts, said Sandberg.
The government approximated that 10,500 public elementary and secondary school systems and districts responded to its most recent EEO-5 data collection. It estimated in the proposal that districts spend an average of 1.7 hours on the collection, or a total of $56.90.
For all districts nationwide, that's about $597,472.29 per collection, which is every two years.
However, the American Institute for Boys and Men, in its comment opposing the changes, said the cost is worth it.
"Eliminating EEO-5 would produce a modest saving for each district while ending a longstanding national source of information about the public-school workforce," Alanna Williams, the organization’s vice president, said in the comment, citing disparities in the teacher workforce, which is mostly women.
"Understanding where that underrepresentation is greatest across the range of school roles, whether it is changing, and where it emerges in the employment pipeline requires consistent data over time," Williams said. Williams noted that 23% of the teacher workforce is male, per federal data.
Sandberg suggested that outside of the collection, districts can still be intentional about equal opportunity by making sure they are using nondiscriminatory practices when hiring, promoting and terminating employees. As part of that, districts may choose to review whether they are effectively advertising positions and providing proper benefits.
