Since I last wrote about the Obama administration’s Dear Colleague letter, attorney Hans Bader has published an interesting op-ed over at the Competitive Enterprise Institute.

Two legal foundations are calling for an end to federal pressure on school districts to adopt racial quotas in suspensions. And rightly so: It is wrong for an agency to pressure regulated entities to adopt racial quotas, or make race-based decisions, even if the pressure does not inexorably lead to a quota.  (See Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998)). I earlier discussed at length how Obama-era rules, issued without notice and comment in 2014, pressured school districts to adopt racial quotas in suspensions, which violated the Constitution; misinterpreted Title VI of the Civil Rights Act; and ignored judicially-recognized limits on disparate-impact liability.

On March 29, Roger Clegg, president and general counsel of the Center for Equal Opportunity, sent an email to the Justice Department asking the Trump administration to withdraw these rules, which are contained in the Obama administration’s January 8, 2014 letter to America’s schools, known as the “Dear Colleague letter: Racial Disparities In The Administration Of School Discipline.” Clegg urged “the withdrawal of the January 8, 2014 ‘Dear Colleague’ letter,” which was issued by the Obama Justice Department’s Civil Rights Division and the Education Department’s Office for Civil Rights. He called this letter “unsound as a matter of both law and policy,” citing “a variety of sources that have criticized the letter, again from both policy and legal perspectives.” Clegg is a former Deputy Assistant Attorney General in the Civil Rights Division, where he served from 1987-1991.

Like Kirsanow, Bader argues that even if the DOE does not explicitly call for a racial quota, it still may not pressure regulated entities to create what would essentially become racial quotas. I think that the Obama administration’s heart was in the right place, so to speak, when they issued the Dear Colleague letter. I think the letter seeks to address an undeniably real issue; I also think they would be derelict if they did not do something to address the issue.

But the more I turn it over, I simply don’t think path they chose was the right (or Constitutionally sound) one. The Department must envision for itself a higher role than simply demanding that schools bring disciplinary statistics in line with a school’s demographics. If you were overseeing a school in which black students comprised 50% of the population but accounted for 75% of suspensions in 2016, and in the following year suspensions for black students had fallen to 50%, would you be satisfied with that result? I wouldn’t. In fact, I’d be extremely concerned about what had to have been done to achieve that stat. I’d have questions about the legitimacy of the number, and if the number was “legitimate,” I’d have questions about why the solution, if it was truly as easy as the numbers suggest, hadn’t been applied earlier.

Fundamentally, I think this comes back to the general worldview of the Department of Education under Duncan and King regarding why schools aren’t improving. Duncan’s record suggests he believed schools didn’t do better because school leaders were not sufficiently afraid of the consequences of not doing so. Therefore, in order to fix the disparate impact of disciplinary policies, the Department could simply threaten regulatory action if the problem doesn’t get better. But those who work on the ground know that schools would solve their problems if they could solve their problems. If schools had the tools to remedy the disparate impact of their disciplinary policies, wouldn’t they have done it already? The solution then, rather than to threaten, is to seek a better understanding of the problem and better equip schools to solve it.

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