Non-Story of the Day: CNN and Washington Post attack DeVos over nothing

Non-Story of the Day: CNN and Washington Post attack DeVos over nothing
Nonmiee for education secretary Betsy DeVos (Image: YouTube screen grab via Senator Elizabeth Warren)

It is very strange to criticize an official or nominee for using standard bureaucratic or legal language, without rephrasing it. After all, rephrasing it could inadvertently change its meaning, and suggest an unexplained departure from past agency practice (a big no-no for federal agencies).

But that is what CNN and the Washington Post are doing in attacking Betsy DeVos, who was nominated by the President to be the Secretary of Education. They are suggesting that it was somehow wrong for DeVos to use standard disclaimers and bureaucratic phrases in some of her responses to questions from Democratic Senators. CNN even used the word “plagiarism” — which is nonsense, because DeVos never suggested that those answers contained new or original ideas.

As a former Education Department lawyer, I can attest that similar use of bureaucratic phrases without attribution is typical among Education Department employees themselves, such as in employee presentations (which I occasionally used to vet when I worked in the Education Department).

Yet, CNN somehow turned this routine practice into an allegation of plagiarism, entitling its hit piece, “Betsy DeVos appears to have plagiarized quotes for Senate questionnaire.” It implies there is something wrong with reusing completely unremarkable and commonplace descriptions of agency practice, even when rephrasing them would serve no purpose. For example, it writes:

In another instance, DeVos’ [sic] appears to have lifted language from the Department of Education website.

“Opening a complaint for investigation in no way implies that the Office for Civil Rights (OCR) has made a determination about the merits of the complaint,” DeVos wrote in response to a question about publishing the list of schools under Title IX investigations.

The Department of Education guidance reads, “Opening a complaint for investigation in no way implies that OCR has made a determination with regard to the merits of the complaint.”

Who cares? I cannot fathom why CNN objects to this. As Sean Davis notes, “Restating federal law/policy when asked how you will conduct policy is not even remotely close to plagiarism.”

Such descriptions of agency practice (verbatim, and without attribution to any earlier source) were typical of the employee presentations made by the staff at the Education Department’s Office for Civil Rights when I worked there.  This sentence cited by CNN and the Washington Post as supposedly being problematic is exactly the sort of language you would find in an employee presentation, verbatim, without attribution: “Opening a complaint for investigation in no way implies that the Office for Civil Rights (OCR) has made a determination about the merits of the complaint.”

Perhaps journalists are under a professional obligation to rephrase passages they quote, since they are being paid to be creative.

Not so with lawyers or government officials, who are supposed to follow existing law, not make up something new. They usually don’t rephrase legal standards or disclaimers, because that might change their meaning subtly, and lead to an unexplained departure from past administrative practice. The less rephrasing, the better.  They are not supposed to be creative, but to faithfully restate the law and agency policy. Many government briefs in Freedom of Information Act cases contain sentences describing the legal standards in such cases that are word-for-word the same as in earlier briefs. Letters sent by Education Department employees to colleges or schools sometimes contain the same passages, word-for-word, as other letters sent by different agency employees to different colleges in the past (such as in discussing agency procedures or regulatory requirements).

The Washington Post’s criticism is similarly lame. It complains about completely unremarkable responses by DeVos that could be found in many similar documents without attribution or citation:

Other responses refer to a requirement that the department’s assistant secretary for civil rights “make an annual report to the Secretary, the President, and the Congress summarizing the compliance and enforcement activities” of the department’s Office of Civil Rights and that the assistant secretary is authorized “to collect or coordinate the collection of data necessary to ensure compliance with civil rights laws within the jurisdiction” of the civil rights office.

Those are verbatim excerpts of a 1979 federal statute, but the law is not quoted or cited.

So what? Laws are not copyrighted. No one disputes that the requirement cited by DeVos exists.  So what purpose would be served by citing to the exact subsection in the U.S. Code where this language occurs? Indeed, nothing stated by the Department of Education on its web site is copyrighted. There is no legal reason why someone can’t quote it, at any desired length, without attribution.

Any insinuation of plagiarism here is nonsense. Plagiarism is about stealing someone else’s original ideas and insights and passing them off as your own — not describing or adhering to existing agency policy or legal interpretations, or describing commonplace facts. There is no need to rephrase statements of fact that even a simpleton could see are not the product of your originality or inventiveness.

Nor is there a duty to cite to the applicable subsection of the U.S. Code every time you describe a legal requirement. That could make an already long document even longer. (DeVos was responding to an incredibly lengthy questionnaire containing 1400 questions from Senate Democrats.) The last thing you want is a document permeated with legalese, when you are discussing a rather obvious legal duty or commonplace administrative practice.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”


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