The Corner

Politics & Policy

Good Recommendation Today from the Federal Commission on School Safety

Students exit a bus at Venice High School in Los Angeles, Calif., December 2015. (Jonathan Alcorn/Reuters)

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the MSM — is that the Obama-era guidance aggressively applying the “disparate impact” approach to school discipline be rescinded.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.

Most Popular


What We’ve Learned about Jussie Smollett

It’s been a few weeks since March 26, when all charges against Jussie Smollett were dropped and the actor declared that his version of events had been proven correct. How’s that going? Smollett’s celebrity defenders have gone quiet. His publicists and lawyers are dodging reporters. The @StandwithJussie ... Read More
Politics & Policy

The Lessons of the Mueller Probe

Editor’s Note: The following is the written testimony submitted by Mr. McCarthy in connection with a hearing earlier today before the House Permanent Select Committee on Intelligence on the Mueller Report (specifically, the first volume of the report, which addresses Russia’s interference in the 2016 ... Read More

Kamala Harris Runs for Queen

I’m going to let you in on a secret about the 2020 presidential contest: Unless unforeseen circumstances lead to a true wave election, the legislative stakes will be extremely low. The odds are heavily stacked against Democrats’ retaking the Senate, and that means that even if a Democrat wins the White House, ... Read More

Why Are the Western Middle Classes So Angry?

What is going on with the unending Brexit drama, the aftershocks of Donald Trump’s election, and the “yellow vests” protests in France? What drives the growing estrangement of southern and eastern Europe from the European Union establishment? What fuels the anti-EU themes of recent European elections and ... Read More
Energy & Environment

The Climate Trap for Democrats

The more the climate debate changes, the more it stays the same. Polls show that the public is worried about climate change, but that doesn’t mean that it is any more ready to bear any burden or pay any price to combat it. If President Donald Trump claws his way to victory again in Pennsylvania and the ... Read More
White House

Sarah Sanders to Resign at End of June

Sarah Huckabee Sanders will resign from her position as White House press secretary at the end of the month, President Trump announced on Twitter Thursday afternoon. Sanders, the daughter of former Arkansas governor Mike Huckabee, succeeded Sean ... Read More
Politics & Policy

But Why Is Guatemala Hungry?

I really, really don’t want to be on the “Nicolas Kristof Wrote Something Dumb” beat, but, Jiminy Cricket! Kristof has taken a trip to Guatemala, with a young woman from Arizona State University in tow. “My annual win-a-trip journey,” he writes. Reporting from Guatemala, he discovers that many ... Read More