First, it is breathtaking in its scope. For example, the Obama administration has given notice that it will be looking not only at funding disparities within school districts, but between them (see page 1, second footnote; and pages 5 and 11; note also references in its accompanying press release to “zip codes” and “family income,” which are not racial classifications). It will look askance at racial imbalances in gifted and talented programs, AP classes, and the like (pages 3–4, 11–12). Thus, “The selection of schools to offer particular programs and the resources made available for the success of those programs may not disproportionately deny access to students of a particular race or national origin. Also, the policies for recruitment and admission to particular schools or programs, both within and across schools, should not deny students equal access on the basis of their race.” Hear that, Bronx High School of Science? And it will look at “student achievement outcomes, graduation and retention-in-grade rates” (page 9).
As noted yesterday, the principal problem with the guidance is its aggressive use of the disparate-impact approach. This is a bad approach under any circumstances, but the version of it embraced by the guidance is particularly pernicious — and legally dubious. The burden of proving a disparate-impact charge here should at all times rest on the government; the school district should never have more than the burden of producing evidence; but the letter indicates to the contrary. Also, the correct formulation of what the produced evidence has to show is “whether a challenged practice serves, in a significant way, the legitimate educational goals of the school”; the DOE formulation is the more stringent “necessary to meet an important educational goal.” The guidance is also misleading when it says the Supreme Court has said nothing to undermine the disparate-impact approach under this statute; it has, beginning with the very opinion the guidance cites (footnote 33).
A few other odds and ends of interest: The press release notes that the guidance was announced at a Congressional Hispanic Caucus event; there’s lots of social science in the footnotes; and, most important, the public does have the opportunity to comment (footnote 3): “If you are interested in commenting on this guidance, please send an e-mail with your comments to OCR@ed.gov, or write to the following address: Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue, S.W., Washington, D.C. 20202.”
ADDENDUM: It appears that Senator Lamar Alexander (R., Tenn.), the ranking member on the Senate’s education committee, doesn’t think much of DOE’s guidance either: He’s called on the Obama administration to rescind it.