Law & the Courts

The Corner

Two Down, One to Go

Yesterday the Federalist Society’s Regulatory Transparency Project released this paper prepared by its “Race & Sex Working Group” (love that name, and I’m proud to be a member of it). The paper critiques three areas of Obama administration overreach by the Department of Education’s Office for Civil Rights: transgender bathroom and locker room access under Title IX; investigations by universities of sexual-assault and harassment claims, also under Title IX; and requirements that school-discipline policies not have a “disparate impact” on the basis of race, under Title VI of the 1964 Civil Rights Act.

To its credit, the Trump administration has taken action on the first two, early on revising the Obama administration’s approach on transgender issues, and last week announcing it would rescind the Obama-administration guidance on campus sexual-assault procedures.

Here’s hoping that it will act soon with regard to the third matter, too. Jason Riley has an excellent column in the Wall Street Journal today, and the Race & Sex paper goes into more detail about why the Obama administration’s guidance on school discipline and race was bad law and bad policy.

As a legal matter, the way the guidance was promulgated, the use of the “disparate impact” approach in this area at all, and in any event the scope it was given, are all deeply dubious. And as a matter of policy, pressuring school officials to get their racial numbers right when disciplining students will inevitably push them either to discipline, say, Asian-American students who shouldn’t be disciplined or, more likely, not to discipline African-American students who should be.

And who will be hurt most if disruptive or dangerous students are not disciplined? Teachers surely, but even more the rule-abiding students who will now find it harder to learn and, indeed, will now be forced to learn in environments that are downright dangerous. And what is the demographic profile of those students? Right: They are more likely themselves to be African American and poor.

In sum, jettisoning this third Obama-administration policy will help, not hurt, the cause of racial equal opportunity, and it advances both civil rights and law and order.

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