There are a number of pernicious “Dear Colleague” letters issued by the Obama administration that the Trump administration has the ability to rescind, and it should do so as quickly as possible. Among these is the Joint “Dear Colleague” Letter on the Nondiscriminatory Administration of School Discipline issued by the Department of Justice and the Department of Education’s Office of Civil Rights (“OCR”).
The letter was sent by OCR to school districts throughout the country to address racial disparities in school discipline, resulting in many districts adopting disciplinary policies functionally indistinguishable from racial quotas. Such policies are, to put it gently, legally suspect. It’s understandable that local school districts would believe these policies pose no constitutional or other legal problems because they’ve been approved by OCR. OCR’s approval, however, has legal problems of its own because it’s based on disparate-impact theory, which theory is not contemplated by the plain text of Title VI and the use of which was questioned by the Supreme Court in footnote six of Alexander v. Sandoval. Furthermore, the Court in Sandoval assumed, without deciding, that disparate impact regulations, duly promulgated under the Administrative Procedure Act, may be permissible under Title VI. But it’s not permissible for OCR to circumvent APA procedures and requirements by issuing Letters and Guidances that impose new substantive burdens on school districts. The OCR Guidance regarding racial disparities in school discipline is not a duly promulgated rule and its legality is, therefore, questionable. It also exposes school districts to potential violations of Section 601 of Title VI, which forbids disparate treatment on the basis of race in an effort to avoid a racially disparate impact permitted under Title VI.
The use of disparate impact in this context also has profound constitutional problems. Although proponents of OCR’s Letter may claim it does not compel the use of racial quotas, that’s precisely the outcome produced. For example, when announcing its new disciplinary policy prompted by the Letter, the Minneapolis Public School District stated, “MPS must aggressively reduce the disproportionality between black and brown students and their white peers every year for the next four years. This will begin with a 25 percent reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018.”
And executions will continue until morale improves.
To all but the most benighted, this is obviously a racial quota for school discipline, because it’s untethered to whether any given student actually deserves punishment for misbehavior.
And it’s bad policy. Predictably, the watering-down of disciplinary policies has produced dramatic increases in the severity and scale of student misbehavior. Who suffers as a result? Non-misbehaving students — black, brown, and white — whose classrooms are disrupted by misbehaving students taking advantage of the new, more lenient disciplinary rules.
The Dear Colleague letter is unlawful. Perhaps worse, it’s dumb. It’s causing serious harm to the ability of American school kids, regardless of race, to learn. Away with it. Now.