Among the recommendations in the final report of the Federal Commission on School Safety issued today — and one already resulting in predictable condemnation from the Left and distorted reporting by the MSM — is that the Obama-era guidance aggressively applying the “disparate impact” approach to school discipline be rescinded.
I wrote against this guidance on NRO the day that it was issued, have criticized it repeatedly since then, and certainly hope that the administration will indeed withdraw it. The guidance’s hyper-aggressive application of the “disparate impact” approach — which requires only statistical disparities rather than actual discrimination for there to be legal violations — to schools’ discipline policies was bad policy and bad law, as today’s report persuasively documents.
As a policy matter, there is overwhelming evidence that the Obama-era policies culminating in the guidance have pushed schools not to discipline students who ought to be disciplined, simply to avoid politically incorrect numbers. Ironically but predictably, the victims are likely to be well-behaved poor and minority students, along with their teachers, since it is their classrooms that become disrupted and dangerous.
As a matter of civil-rights law, the Education Department lacks authority to use the “disparate impact” standard in enforcing Title VI of the 1964 Civil Rights Act because the Supreme Court has ruled it bans only “disparate treatment.” That’s why ultimately, the administration should promulgate new regulations that make clear that the disparate-impact approach won’t be used in this area anymore. In any event, and in the meantime, the guidance’s hyper-aggressive approach violates other Supreme Court and lower federal-court decisions, including a ban on racial quotas in school discipline, and this should be stopped immediately through the guidance’s rescission.
Finally, as a matter of legal procedure, the guidance violates both the Congressional Review Act and the Administrative Procedure Act.
Defenders of the guidance claim that it is needed to stop racial discrimination in the application of school discipline, but this is simply not true: Any true discrimination can be addressed without using the disparate-impact approach, which actually results in more racial discrimination and not less. In all events, as discussed, the guidance violates the law in a number of ways, and has enormous policy costs that overwhelm any dubious policy benefits.
The administration should withdraw the guidance immediately. Indeed, the withdrawal is long overdue.