The Corner

More Race-Based Guidance from the Obama Administration

The Obama administration’s Department of Education today has announced that it is sending a long (37 page) “Dear Colleague” letter to all states, school districts, and schools, warning them about any racial disparities in any of their programs, and that includes academic and extracurricular programs, teaching, technology and instructional materials, school facilities, and I suppose anything else. 

The asserted authority for this is Title VI of the 1964 Civil Rights Act, which bans discrimination on the basis of race, color, and national origin. Nothing wrong with that statute, which the Supreme Court has held bans only actual discrimination (“disparate treatment”), but the Obama administration makes clear that it will be using DOE’s regulations to challenge disproportions even when there is no actual discrimination (“disparate impact”). 

As the administration says today, “Under Title VI, States, school districts, and schools must not implement policies or practices for providing educational resources that disproportionately affect students of a particular race, color, or national origin, unless the policies and practices are educationally necessary and there are no comparably effective alternatives that can achieve the same goals with less adverse effect.”

This, of course, is the administration’s favorite mode of civil-rights enforcement (it’s already announced it will take this approach with respect to school discipline), and it has all kinds of bad side-effects, such as encouraging race-based decisionmaking by educators (“we’ve got to get our numbers right”), and discouraging perfectly legitimate policies that have disproportionate effects (as almost all policies do).

Anyway, I just wanted to flag this for now; I may have more later.

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