The Obama administration certainly had its work cut out for it when it tried to find someone further to the left than Thomas Perez to head the Justice Department’s civil-rights division, but it appears to have succeeded. Among his other accomplishments, Debo Adegbile went out of his way to play a role in defending cop killer Mumia Abu-Jamal, an international cause célèbre on the left, prompting the Fraternal Order of Police, among other groups, to oppose his nomination. Read all about this and Mr. Adegbile’s other left-wing causes here.
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In a recent speech President Obama declared that economic inequality is the “defining challenge of our time.” Others on the Left have agreed and, on the occasion of the 50th anniversary of the “War on Poverty,” they too have railed against inequality.
The War on Poverty had its own problems, but my point today is that it is one thing to be against poverty; it is something else to be against inequality. One could end poverty and still have plenty of inequality; one could end inequality by impoverishing everyone.
What’s as important, focusing on inequality means making envy an engine of public policy, an odd status to give something that has the distinction of being one of the Seven Deadly Sins and prohibited by the Ten Commandments. In “Screwtape Proposes a Toast,” C. S. Lewis warned against encouraging people to embrace the closely related and obviously false notion that, for one and all, “I’m as good as you are.”
Alas, however, the Left seems determined to assert not only that it’s not really your fault if you underachieve, but also that it’s not really to your credit if you achieve.
I would add that, in the Center for Equal Opportunity’s neck of the woods, the notion of “white privilege” has the same lineage. The Left not only dislikes any standard with a “disparate impact” — see the discussion of school discipline later in this email — it wants to put down those who have whatever it is that separates them from others. If someone built something, it wants to believe that “you didn’t build that”; if someone has something that others do not, it must be because of some illegitimate privilege.
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The Education and Justice Departments of the Obama administration last week issued extensive joint guidance to K–12 schools on student discipline and, in particular, on how the administration will determine if school-discipline policies are discriminatory on the basis of race or ethnicity. They’re extensive, but that’s not to say they contain much new from this administration; and while what’s in here is not new, that’s not to say that it’s not disturbing.
Predictably, the administration promises to be extremely aggressive in using the “disparate impact” approach to its civil-rights enforcement — that is, in ensuring that school-discipline policies that have disproportionate results across races are severely scrutinized. It’s a fair question whether the federal government in 2014 needs to be micromanaging schools, period, to ensure there is no actual discrimination, but certainly it’s a bad thing that the administration is going to be insisting on racial proportionality. And a careful look at pages 11–12 of the administration’s “Dear Colleague” letter makes clear that this is just what it will do. Any racial disproportion is fair game, and the policy giving rise to the disproportion must be “necessary” and “important” and have enough “tightness of . . . fit” to make the federal educrats happy. Even then the school district will lose if the educrats think that they in their wisdom can come up with “comparably effective alternative policies or practices.” The two “examples” given later in the letter are deliberately unilluminating.
The fact of the matter is that not all racial and ethnic groups (not to mention boys versus girls) are equally likely to be discipline problems. There are a variety of reasons for this, but I will just note here what is probably the main one. There are huge differences among groups in out-of-wedlock birthrates — more than seven out of ten African Americans, six out of ten Native Americans, and five out of ten Hispanics, versus fewer than three out of ten non-Hispanic whites and two out of ten Asian Americans are born to unmarried women — and children growing up in homes without fathers are much more likely to get into all kinds of trouble, including at school.
If schools are pressured to “get their numbers” right in this area, they will either start disciplining students who shouldn’t be or, more likely, will not discipline some students who ought to be. If unruly students are not disciplined, the kids who will lose out the most will be well-behaved students in classes with undisciplined classmates, and those well-behaved students are themselves likely to be poor black or Latino kids. Somehow the Left always forgets about them in its eagerness to show compassion.
It is true that there are difficult issues in the school-discipline area — as always in balancing group versus individual interests — and conservatives have been quick to recognize the problems with “zero tolerance” policies in particular. But it profits nothing to view these problems through a racial lens.
There is an opportunity for schools and anyone else to comment, by sending an e-mail to OCR@ed.gov; here’s hoping plenty of right-minded people do. Here’s some more useful grist for their mill.
Let me conclude with a couple of legal points. There is a very good argument that the federal government lacks authority to take the disparate-impact approach under the relevant statute in this area, Title VI of the 1964 Civil Rights Act, as discussed here (pages 135–138). In brief, the Supreme Court has ruled repeatedly that Title VI is not violated unless there is disparate treatment (that is, intent in most cases), and so agency regulations promulgated under that statute cannot take a different approach and prohibit actions with only a disparate impact. The Court has noted this anomaly, though so far it has not ruled on it. Bottom line: If there is a school district or other interested party out there who would like to challenge this guidance, it would stand a good chance of success.
The problems with Title VI aside, CEO has also pointed out to the Obama administration that the proposed guidance’s disparate-impact approach is at odds with these court decisions: United States v. Armstrong (recognizing that infraction rates can be different for different racial groups); and People Who Care v. Rockford Board of Education (barring requirement of racial proportionality in school discipline).
