The Education Department and Justice Department this afternoon jointly rescinded the Obama era guidance that aggressively applied the “disparate impact” approach to school discipline policy. That approach makes it a civil-rights violation if a school policy has racially disproportionate statistical results, even if the policy is racially neutral by its terms, in its intent, and in its application.
This is welcome news, because — as yours truly and other conservatives have said from the day that it was announced — the guidance is bad law and bad policy, and its principal victims have been students (ironically but predictably a disproportionate number of whom are poor and minority) who want to learn but whose classrooms become disrupted and dangerous because schools are reluctant to discipline students who ought to be.
So we should loudly applaud this development, but it is also only the first step, and now the administration must take two more. In the short term, it needs to ensure that the bureaucracy follows the law, so that at a minimum it follows the constraints that the courts have put on any use of the disparate-impact approach, and which the guidance ignored.
The step after that is the most important: The administration must clarify through a new rule that the disparate-impact approach will not be used in the enforcement of Title VI of the 1964 Civil Rights Act. The legal point to be made here is that the Supreme Court has made clear that this statute bans only actual disparate treatment on the basis of race; and indeed if, as the Court has also ruled, even Congress in enforcing a disparate-treatment constitutional ban generally cannot use the disparate-impact approach, then it follows a fortiori that a mere agency cannot use that approach — which actually requires race-based decision making — in enforcing a statute that Congress has already decided bans only disparate treatment. The policy point is that the disparate-impact approach is not needed to ensure nondiscrimination; and even if once in a great while it might be a handy tool, that dubious and marginal benefit cannot outweigh the heavy price that the approach has been shown to have in encouraging racial quotas and in discouraging perfectly legitimate government objectives, like maintaining order in our schools.
But all that can wait until the day after Christmas. Meanwhile, kudos to the administration!