In December, the Education Department began termination proceedings for an employee who acted as a whistleblower over the department’s treatment of transgender students, HuffPost has learned.
Dwayne Bensing, a lawyer for the Office of Civil Rights within the department, says he was retaliated against after he leaked emails to a reporter at the Washington Blade. The emails indicated that Department of Education employees were violating protocols on how they handled an investigation surrounding transgender students.
In early January, Bensing, who had worked for the federal government for more than five years, filed a complaint with the Office of Special Counsel, an agency that handles the protection of government whistleblowers. Bensing claims the government violated the Whistleblower Protection Act in disciplining him for the disclosure.
“They care more about harming students than they do about protecting their career civil servants,” Bensing told HuffPost.
Elizabeth Hill, a spokesperson for the Department of Education, says it has not received the complaint yet and thus cannot comment on it, though HuffPost provided a list of allegations within it.
Bensing’s saga started last summer, after the Alliance for Defending Freedom (ADF) ― an anti-LGBTQ hate group, according to the Southern Poverty Law Center ― filed a complaint with the Department of Education’s Office for Civil Rights. The complaint challenged a Connecticut policy that allows transgender athletes to compete on the team that aligns with their gender identity, saying it gives an unfair physical advantage to athletes who were born male but now identify as female.
In August, Bensing discovered that the department planned to move forward with this complaint; something that surprised him given that it typically takes months of deliberation to determine the course of action on legally controversial complaints. He soon found internal communication indicating that attorneys were unsure of the legal theory for taking up the investigation even as they were initiating it. The emails also indicated that the head of the civil rights office, Ken Marcus, pressured employees to expedite the investigation. After realizing that leaders at the Department of Education were implicated in the situation, Bensing shared the emails with the Washington Blade reporter.
“It was just more than abnormal; it was against everything we do,” Bensing told HuffPost of the process outlined in the emails.
When Bensing was confronted by his bosses about disclosing the emails a month later, he confessed, explaining he was concerned about “partisan overreach,” “abuse of power” and the “violation of law and procedures,” according to documents reviewed by HuffPost. By September, he had been sidelined and given administrative duties. In December, Bensing received a letter from officials proposing his removal from his position and from federal service.
“Your duties require that you regularly handle sensitive, deliberative information that may also contain personally identifiable information,” wrote Randolph E. Wills, deputy assistant secretary of education. “As a result of your unauthorized release of this information, I have lost trust in your judgment and ability to perform your assigned duties.” (Bensing says he was careful not to disclose any personally identifiable information in this instance.)
Wills’s letter conceded that Bensing had a history of excellent performance reviews and no disciplinary record, but he wrote that Bensing’s “failure to express any remorse leads me to believe you lack the potential for rehabilitation.”
Bensing was told he would have the opportunity to respond before a “deciding official” made a final call on his employment within 30 days. Bensing, now an attorney at the ACLU of Delaware, submitted his resignation three days later.
The Whistleblower Protection Act holds that employees have the authority to disclose government information if they believe they are witnessing a violation of rules, laws or regulations, gross mismanagement or an abuse of power. The only exceptions are when the disclosure is specifically prohibited by law or required to be kept secret by executive order in the interest of national security.
Denise Alves, a lawyer for the American Federation of Government Employees union, represented Bensing after he first faced discipline in September. In a December letter, she argued that Bensing’s actions fell squarely within the Whistleblower Act’s legal protections.
“Mr. Bensing engaged in protected activity by disclosing information demonstrating what he reasonably believed evidenced violations of law, rules, and regulations and an abuse of authority by OCR management,” Alves wrote to management, according to documents provided to HuffPost.
A Spike In Retaliation
Bensing is one of dozens of whistleblowers who have come forward in the Department of Education during the Trump administration.
Complaints of whistleblower retaliation increased 775% between fiscal year 2016 and 2018, according to a budget request from the Department of Education’s Office of Inspector General. In September 2019, the Education Department proposed a five-day suspension for a budget analyst who had leaked information to The Washington Post ― a punishment far less severe than what was proposed for Bensing.
As an employee of the Department of Justice during the Obama administration, Bensing helped craft the joint Department of Justice and Department of Education guidance designed to protect trans students from discrimination. It called on schools to allow transgender students to use the bathrooms and facilities that align with their gender identities. But in 2017, Education Secretary Betsy DeVos and Attorney General Jeff Sessions rescinded the guidance.
Bensing was one of a small group of employees, part of the department’s LGBTQ affinity group, who met with DeVos the day she rescinded the guidance. The group had requested the meeting after hearing rumors that the guidance faced imminent rescission. During the meeting, Bensing pleaded with DeVos to keep it in place, asking her to consider the experience of Gavin Grimm, the transgender teen who had stood before his Virginia school board and asked for protection only to be called names. (HuffPost previously reported on this meeting, but was not aware Bensing had been a participant.)
DeVos did not heed Bensing and the others’ pleas, and she announced the rescission of the guidance later that day. After the meeting, she sent a handwritten note to Bensing, thanking him for his willingness to stand on behalf of vulnerable students.
When DeVos rescinded the guidance, she said that the issue was one for localities to decide. Accordingly, the organization targeted by the ADF complaint, the Connecticut Interscholastic Athletic Conference, has its own policy that accommodates transgender athletes.
“Nowhere has it said treating these students according to their gender identity is a violation of Title IX,” Bensing told HuffPost, in regards to the initiation of the ADF investigation. “This was a major shift in the interpretation of Title IX, which is in violation of recent court precedent.”
Internal emails reviewed by HuffPost indicate that attorneys were pressured to hurry the opening of the investigation by high-level officials, even when there was confusion about “the precise legal framework to apply” and the timeliness of the complaint.
Additionally, Bensing recalls seeing internal memos in which attorneys expressed confusion about whether the Department of Education has jurisdiction over the Connecticut Interscholastic Athletic Conference (CIAC), as it does not appear to directly receive federal funds (HuffPost has not reviewed such memos). But the Education Department’s letter announcing the initiation of the investigation says it has jurisdiction over CIAC to the extent that the group has authority over federally funded schools’ athletic programs. The letter also clarifies that the mere opening of an investigation does not mean the complaint necessarily has merit.
Bensing says that he would act as a whistleblower again, despite the consequences he faced, out of concern for vulnerable transgender students.
“This wasn’t some ambiguous thing to me,” Bensing said. “I knew these students and cared for them.”
CORRECTION: A previous version of this article incorrectly identified Denise Alves as Denise Alvarez.