I wrote earlier this week about the bad guidance issued by the Obama administration on school discipline. The guidance is bad principally because of the aggressive use it makes of the “disparate impact” approach to civil-rights enforcement. I wanted to add that there is a very good legal argument that the federal government lacks authority to take this 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.
by Roger Clegg