Withdraw the Bad Guidance | Center for Equal Opportunity

A regional branch of the Department of Education’s Office for Civil Rights late last year entered into a resolution agreement with the Milwaukee public school system that requires schools to assess whether there are racial disproportions among students being disciplined and, if so, to “consider steps that can be taken to eliminate the disproportion to the maximum extent possible.”

But racial disproportions don’t prove racial discrimination, and the fact is that there is not uniformity among all racial and ethnic groups at all times and in all places when it comes to school discipline infractions.

The Center for Equal Opportunity has been urging the Education Department to withdraw the Obama-era “guidance” letter that encourages this kind of quota-setting, because of both legal and policy defects in it. In brief, any “disparate impact” approach to civil-rights enforcement is legally dubious in this context, particularly one that pushes so hard for racial quotas; and as a policy matter, the result will inevitably be a failure to discipline students who ought to be disciplined, meaning less learning (especially for, ironically, black students) and more physical assaults (for students and teachers).

This latest agreement — probably entered into by local bureaucrats who like the guidance and preferred not to touch base with the Trump administration’s appointees in Washington — is another reason why the sooner the withdrawal, the better. Read more here and here.

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But there’s some good news on this front: Gail Heriot and Alison Somin have written an important article that will appear in the Texas Journal of Law and Politics, “The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, and Wrong on the Law.” It focuses in particular on that “Dear Colleague” letter that was sent by the Obama administration in 2014 to school officials across the country, warning that that the Department of Education would be taking an aggressive “disparate impact” approach whenever student discipline policies led to statistical disproportions on the basis of race and ethnicity. From the day it was sent to the present, the letter has drawn much fire from conservatives, including especially the Center for Equal Opportunity, who would like to see it withdrawn, including a paper for the Federalist Society’s Regulatory Transparency Project.

The Heriot-Somin article is an invaluable addition to the critique. As its title suggests, it criticizes the letter on both policy and legal grounds. Thus, as a policy matter, the article points out that the “Dear Colleague” letter inevitably discourages schools from disciplining some students who should be disciplined. This does misbehaving students no favors in the long run, and in the short run it guarantees that there will be more classroom disruption, which is a bad thing for well-behaved students who want to learn and the teachers who would like to teach them. As I noted earlier, these two sets of victims will face not only educational harm but frequently physical endangerment as well.

And the “Dear Colleague” letter encourages schools to discipline students with an eye on race — precisely what the civil rights laws were designed to prohibit. The article explains why this is both bad policy and legally problematic, beginning with the fact that racial quotas are illegal in any context and that the statute relied upon by the Education Department — Title VI of the 1964 Civil Rights Act — has been held by the Supreme Court to ban only actual disparate treatment and not mere disparate impact. The Court has indeed made pointed reference to “how strange” it is that a Title VI regulation would take the disparate-impact approach, banning something that the statute itself permits. For those interested, the relevant cite is Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001).

t should be noted that the Heriot-Somin article is important not only in criticizing the disparate-impact approach in the specific area of school discipline. Much of what it says about the problems of using Title VI as the basis for agency disparate-impact policies will apply as well in the other areas where Title VI has been abused this way, and those areas are legion: not just school discipline but student admissions, and not just education but law enforcement and environmental policy, and in the requirement that federal agencies and federally funded programs use foreign languages. The Center for Equal Opportunity has been pointing out these abuses for years.

Finally, the general problems with the disparate-impact approach need to be recognized and addressed — by all three branches of the federal government — not only with respect to Title VI, but for other statutes and regulatory programs; this includes, for example, employment, voting, housing, and credit. Here’s hoping that this article will encourage that scrutiny.

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Let me end this week’s email on a positive note: I have written before about an eleventh-hour proposal of the Obama administration to further embed racial and ethnic identity politics into, among other things, the Census questions, particularly by adding a new racial/ethnic category (“Middle Eastern or North African”) and changing the treatment of “Latino” as well. The good news is that the Trump administration announced on January 26 it will not go down this road.

My earlier writing drew on the good work of Mike Gonzalez at the Heritage Foundation, so readers might be interested in his take on this latest development as well.

The Center for Equal Opportunity had formally urged the administration to take this course, and we’re of course delighted that it has done so.

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