Third Time’s the Charm? | Center for Equal Opportunity

Here’s hoping the third time’s the charm. The Supreme Court last week granted review in a case presenting the issue whether “disparate impact” claims may be brought under the Fair Housing Act. This is the third term in a row the Court has done so; in the preceding two, the Left succeeded in scuttling the cases before the Court could decide them.

In a disparate-impact case, the plaintiff does not have to prove racial discrimination, but only a racial disproportion. So, for example, a landlord who refused to rent to people with a history of drug-dealing, or had income below a certain level, or who had poor credit histories, could be sued if any such criteria had a disproportionate effect on this or that racial or ethnic group. It would be up to the landlord to prove some degree of “necessity” for her policy, even if was nondiscriminatory by its terms, in its motive, and in the way she applied it.

The Center for Equal Opportunity has been heavily involved in all three cases. Here’s an amicus brief that we joined and helped write in the latest matter, discussing the case and why the Court should hear it. We don’t believe that the Fair Housing Act covers “discrimination” that is not actually discrimination.

By the way, just before the Court’s announcement, I was quoted in a Bloomberg News article about the case, here.

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And speaking of “disparate impact”: The Obama administration’s Department of Education last week announced that it is sending a long (37 page) “Dear Colleague” letter to all states, school districts, and schools, warning them about any racial disparities in any of their programs, and including academic and extracurricular programs, teaching, technology and instructional materials, school facilities, and I suppose anything else.

The asserted authority for this is Title VI of the 1964 Civil Rights Act, which bans discrimination on the basis of race, color, and national origin. Nothing wrong with that statute, which the Supreme Court has held bans only actual discrimination (“disparate treatment”), but the Obama administration makes clear that it will be using DoEd’s regulations to challenge disproportions even when there is no actual discrimination (“disparate impact”).

As the administration said last week, “Under Title VI, States, school districts, and schools must not implement policies or practices for providing educational resources that disproportionately affect students of a particular race, color, or national origin, unless the policies and practices are educationally necessary and there are no comparably effective alternatives that can achieve the same goals with less adverse effect.”

This, of course, is the administration’s favorite mode of civil-rights enforcement (it’s already announced it will take this approach with respect to school discipline), and it has all kinds of bad side-effects, such as encouraging race-based decisionmaking by educators (“we’ve got to get our numbers right”), and discouraging perfectly legitimate policies that have disproportionate effects (as almost all policies do).

So this is a bad letter. But let me elaborate a bit more on a couple of points.

First, it is breathtaking in its scope. For example, the Obama administration has given notice that it will be looking not only at funding disparities within school districts, but between them (see page 1, second footnote; and pages 5 and 11; note also references in its accompanying press release to “zip codes” and “family income,” which are not racial classifications). It will look askance at racial imbalances in gifted and talented programs, AP classes, and the like (pages 3–4, 11–12). Thus, “The selection of schools to offer particular programs and the resources made available for the success of those programs may not disproportionately deny access to students of a particular race or national origin. Also, the policies for recruitment and admission to particular schools or programs, both within and across schools, should not deny students equal access on the basis of their race.” Hear that, Bronx High School of Science? And it will look at “student achievement outcomes, graduation and retention-in-grade rates” (page 9).

As I’ve already noted, the principal problem with the guidance is its aggressive use of the disparate-impact approach. This is a bad approach under any circumstances, but the version of it embraced by the guidance is particularly pernicious — and legally dubious. The burden of proving a disparate-impact charge here should at all times rest on the government; the school district should never have more than the burden of producing evidence; but the letter indicates to the contrary. Also, the correct formulation of what the produced evidence has to show is “whether a challenged practice serves, in a significant way, the legitimate educational goals of the school”; the DoEd formulation is the more stringent “necessary to meet an important educational goal.” The guidance is also misleading when it asserts the Supreme Court has said nothing to undermine the disparate-impact approach under this statute; it has, beginning with the very opinion the guidance cites (footnote 33).

By the way, it appears that Senator Lamar Alexander (R., Tenn.), the ranking member on the Senate’s education committee, doesn’t think much of DOE’s guidance either: He’s called on the Obama administration to rescind it.

One last point about the guidance: The public has the opportunity to comment (footnote 3): “If you are interested in commenting on this guidance, please send an e-mail with your comments to OCR@ed.gov, or write to the following address: Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue, S.W., Washington, D.C. 20202.”

The Center for Equal Opportunity certainly will do so.

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