School Discipline: Don't Make a Federal Case Out of It

The Obama Administration's effort to federalize school discipline policy was not just wrongheaded, it was likely beyond the scope of its authority; Secretary DeVos should withdraw it.

|The Volokh Conspiracy |

School discipline policy has been in the news a lot lately. Education Secretary Betsy DeVos is being urged by many (including me) to withdraw the Obama Administration's controversial "Dear Colleague" letter on the subject.

There's a lot wrong with that letter. Most important, it threatens to cut off funding to schools that suspend African-American students at higher rates than other students. It states:

Schools also violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race.

It's true that African American students are disciplined at higher rates than white students all across the country. It's also true that white students are disciplined at higher rates than Asians and that boys are disciplined at higher rates than girls, though those latter points don't seem to trouble anyone.

To "justify" the black-white gap, the letter requires more than simply showing that the minority students who are being suspended actually misbehaved. Schools have to be able to prove to the Ed Dept.'s satisfaction that lesser sanctions would not have been enough. In practice, such proof is not to be had. The result is that schools just try to get their numbers "right." As one Oklahoma City teacher put it, "We were told that referrals would not require suspension unless there was blood."

Most of the criticism argues simply (and correctly) that this policy hurts students, especially those trying to learn in schools in disadvantaged neighborhoods. But Alison Somin and I have a draft article (tentatively titled The Department of Education's Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law) that presents the legal argument as well—that the Ed Dept. is acting beyond the scope of its powers when it purports to impose disparate impact liability.

Title VI, which prohibits federally-funded entities from discriminating on the basis of race, color or national origin, is the ultimate source of the Ed Dept.'s authority here. But Title VI is not a disparate impact statute. It has been interpreted by the Supreme Court to be co-extensive with the Equal Protection Clause of the 14th Amendment. Since the Equal Protection Clause does not does not prohibit mere disparate impact, neither does Title VI. In Alexander v. Sandoval, the Court treated this as settled law: "It is similarly beyond dispute –and no party disagrees –that [Title VI] prohibits only intentional discrimination."

The letter claims instead that, regardless of what Title VI itself does, regulations promulgated pursuant to Title VI in 1966 impose broad liability for disparate impact. In our draft article, we show that such an interpretation is incorrect. But suppose the letter is right about its interpretation: If so, by analogy to City of Boerne v. Flores, such regulations would be beyond the scope of the Executive Branch's rulemaking authority.

City of Boerne held that Congress can use its Section 5 power only to enforce the Equal Protection Clause, not to extend its reach. Under that case, Section 5 legislation will be judged by whether it is congruent and proportional to some real-life EPC problem.

Administrative agencies using their rule power shouldn't have more authority than Congress under Section 5. I don't see a way that an all-purpose ban on race or national origin disparate impact could survive that standard (or any other standard requiring that the rule be an effort to enforce Title VI rather than an effort to expand it). Everything or nearly everything has a disparate impact on some group. Since the regs at issue cover not just discipline, but athletics, parking, grading, and everything else, they expand the coverage of Title VI beyond recognition.

How can that be viewed as an effort to enforce Title VI?

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  1. I wonder why the press did not consider the Obama Adminiatration’s overreach a scandal.

    1. Because it wasn’t a scandal.

      You can disagree with policy decisions but that doesn’t make them scandalous.

      1. Only because you don’t want it to be a scandal. Kids died as a result of this policy (e.g. the recent school shooting a n Broward County, Florida). Moreover it made a large number of majority, or even close to majority, black high schools essentially ungovernable, effectively destroying the ability of those schools to teach most of their students, black or white. If destroying educational opportunities for millions of children isn’t scandalous, it surely should be.

        1. Also, the Administration was effectively trying to rewrite law.

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        2. Whole lot of assertions in that response with no evidence to speak of.

          Yes, there were issues with the school not taking stiffer acts against Cruz (who, incidentally, was adopted into a family with a Hispanic name but certainly looks white, and certainly is not black as the post discusses). More important, the “Dear Colleague” letter referenced was sent in January 2014, years after officials first began reporting issues with Cruz.

          I’ll also need to see some evidence for the claim that black high schools are ungovernable. Oh, and since you attribute it to the letter, they must have become ungovernable since January 2014.

          1. Hispanics are whites, technically. Cruz also looks like someone with fetal alcohol syndrome, if you’re going just by looks.

            Still, the fact that Cruz was given pass after pass, despite his behavior, is directly tied to this policy. Does it make the Obama Dept of Education head responsible for the murders? No. But it makes them as complicit as say, the Air Force that didn’t send the information about domestic abuse to the DOJ so that the last mass shooter at the Texas church couldn’t have bought his gun legally.

            Ungovernable? I dunno. Failing at their core mission for a long time though, even without this policy. Mayhap it’s just made them worse.

            I recommend this blog about teaching and education by a teacher: https://spottedtoad.wordpress.com/

            1. How is it directly tied to this policy, when (a) Cruz began receiving “pass after pass” years before the policy was instituted; and (b) by your own concession, the school actually had an incentive to punish him in a harsher manner?

              Just admit that your making up a narrative because it fits your predetermined views.

              1. Making up a narrative? WTH are you talking about?

                The policy started in 2014, but as far back as 2010 the arguments for it were being presented. Cruz did the shooting in 2018. The school was warned three times by students about him, which included death threats to the students reporting Cruz. He also assaulted students, cursed out teachers, kicked in classroom doors, and threw chairs. In his off school time, he mutilated small animals, pulled a gun on his mother, and some other bad.

                So, instead of being kicked out permanently, and being prosecuted for the felony of a death threat (getting him off the street) he was transferred six times in three years, in order to avoid that school-to-prison pipeline. The kid needed serious mental health intervention, that, or keeping him separated from the rest of society, which is what we do to violent uncontrollable types.

                You’ve got this incentive thing backwards. Under the policy at question, the school was incentivized to keep Cruz (a danger to himself and others) enrolled. Without the policy, the school would be incentivized to kick him out to make a better learning environment for the non-violent kids.

                1. None of you have cited any evidence Cruz was passed over for racial reasons. Obama’s Admin is as complicit in school shooting as the clearly negligent Air Force!?

                  You are as bad as any gun control zealot. Worse, because your causality is even more dodgy.

                  1. You’re setting up a fake hurdle I have to cross to prove causation in this instance. All I need to show some level of complicity, is show that the Broward County Public Schools did not take action that they normally would have taken, but for the intervention of the policy cited in the OP. Frankly, that’s a low bar, all you have to do is imagine that kid’s behavior in a school w/o that policy, say, in rural Kansas. That the policy was created because blacks were getting kicked out of schools disproportionately is a red herring, because once the policy was in effect, they applied it to whites/blacks/Asians etc.

                    Not incarcerating Cruz, or giving him the mental health assistance he needed, yes, is equivalent to the Air Force not sending the information so the Texas shooter would be a prohibited person. Do you want a % of how complicit? Give me a SWAG.

                    1. The superintendent of Broward County Public Schools, Robert W. Runcie, when he took over in 2011, the district had the highest number of school-related arrests in the state. Arrests dropped from more than a thousand in 2011-2012 to less than four hundred just four years later.

                  2. “Obama’s Admin is as complicit in school shooting as the clearly negligent Air Force!?”

                    It’s almost like Obama wasn’t commander in chief or something.

  2. Welcome to the blog! Hope your future articles are just as insightful.

  3. If the Education Department wanted to be creative, it could just as well have said that *limiting* school discipline would have had a disparate impact on black students.

    Letting troublemakers ruin the educational experience for kids who want to learn…the Department could have said that this has a disparate impact on poor black kids who are going to school to learn something.

  4. This argument strikes me as weak. It uses a decision that the statute means the same thing as the constitution to attempt to constitutionalize everything, arguing that the statute has to be limited the same as the constitution is.

    But does the statute have to be so limited? Plenty of titles of the civil rights laws have been re-interpreted, some fairly recently, to include disparate impact elements. And Chevron says agencies have authority to reset statutes’ interpretational boundaries. This is exactly what the Obama administration attempted to take advantage of.

    It seems to me that a serious analysis has to grapple with this. You may think Chevron was wrongly decided and only courts should be deciding what the statute means. You may think Chevron is good law but limited, and agencies can’t trump existing judicial decisions. You may have some other reason to think Chevron doesn’t apply here. But you have to make some argument why you think there’s no regulatory authority to add a disparate impact analysis by regulation to the statutory interpretation here. You can’t just ignore the whole issue of agency deference and act as if Chevron had never happened. And you can’t just conflate a statute with the Constitution.

    1. “It uses a decision that the statute means the same thing as the constitution to attempt to constitutionalize everything, arguing that the statute has to be limited the same as the constitution is.”

      This is only a weak argument if you reject the notion that the Constitution is one of “limited and enumerated powers” where it deals with legislative authority. But that view rejects everything which the authors of the Constitution, and those who ratified it, intended. If the limit of Congress’s authority under Section 5 of the 14th Amendment was to enforce only that which Section 1 prohibited, i.e., intentional discrimination, then it was beyond Congress’s authority to go further. On the other hand, if, as you apparently contend, Congress was free to go beyond what was authorized by Section 5, then Section 5 was unnecessary. By the same token, if Congress was free to go beyond Section 5 of the 14th Amendment, it is also free to go beyond any of its authority under Article I, Section 8 – the power to “regulate commerce between the states” can be turned into “Congress can do anything it damn well pleases” – and the limitations on the power of the Federal government become completely illusory.

      1. …Bingham?

        Seriously though, your logic isn’t great here.

        1. Section 1 only prohibiting intentional discrimination is not proven. Neither is the post-14th Constitution being one of limited and enumerated powers.
        2. You are assuming an originalist paradigm. Which is fine if you’re arguing what the law should be, but you’re taking issue with ReaderY’s statement of what the law is.
        3. You set up a false dichotomy between ‘Section 5 applies only to Section 1’ OR ‘Congress can go behind Section 5’ those have nothing to do with each other.

        1. Section 1 only prohibiting intentional discrimination is not proven.

          Huh? Unless you’re making the argument (which is certainly not foreign around these parts) that the constitution means what it means regardless of what the Court has said it means, that’s not the case. The Court has clearly stated that it only prohibits intentional discrimination. Unless and until the Court changes its collective mind, that proposition is proven.

          1. Forgive me – it’s been a while since I did Con Law (though I love me some City Of Boerne so this is a bit of my jam.

            If Congress is permitted to look at disparate impact under Section 5, doesn’t that mean Section 1 must encompass it as well?

          2. It is not clear to me why disparate impact, if extreme enough, doesn’t show intent.

            The OP mentions Alexander v. Sandoval, in which Alabama decided to administer drivers license exams in English only, with an obvious negative impact on Spanish-speaking residents. Now, the case itself didn’t deal with the disparate impact issue, but surely it is reasonable to infer an intent to discriminate from such an action.

            Has the law never heard of Thomas Bayes?

            1. Suppose I wanted to start an ultra-elite finance firm requiring perfect GREs to enter. Under disp. impact theory, this would likely be considered to have a disparate impact on underperforming minorities and women and could be challenged in court on those grounds.

              1. Well, anything can be challenged.

                Some policies that have disparate impact are reasonable. Some are BS. But you can always come up with some pretext, so unless you allow statistical evidence of disparate impact there is going to be a lot of discrimination.

                That’s the world.

                1. You’re mixing up issues. Statistical evidence can always be cited as evidence that the law or policy is intended to be discriminatory, even in a disparate treatment case. But a disparate impact claim says that it doesn’t matter whether the policy is intended to be discriminatory; the fact of a statistically different result is sufficient.

                2. The point I am making is that a facially neutral policy without evidence of discriminatory intent can currently be found discriminatory on statistical evidence alone. The only defense available is an affirmative one proving that no policy with less disparate impact could achieve the same ends.

                  The problem is that this ends with the court making business decisions on your hiring processes. This is why so many companies today obfuscate their hiring policies.

                  1. But a disparate impact claim says that it doesn’t matter whether the policy is intended to be discriminatory; the fact of a statistically different result is sufficient.

                    a facially neutral policy without evidence of discriminatory intent can currently be found discriminatory on statistical evidence alone.

                    I find these statements a bit murky.

                    David,

                    By “a statistically different result” do you mean any deviation from a crudely calculated statistical expectation? Or do you mean a significant deviation from the relevant population? These are two different things.

                    Negi,

                    Again, I don’t see the problem with relying on statistical evidence alone, properly evaluated. Is other evidence going to be convincing on its own? I doubt you are going to find emails saying, “Gee, if we add this unimportant requirement that will shut out a lot of black applicants.”

                    Granted, there are gray areas of qualification, but there are mildly bigoted employers also.

                    1. I’m with DMN on this – disparate impact isn’t a different indicator, it’s a different substantive element.

    2. I don’t understand your argument here. If the Court rules that a statute is ambiguous and that a particular regulation is a reasonable interpretation of the statute, then an agency can later issue a contrary replacement regulation that is also a reasonable interpretation. But if the Court rules that a statute means X, then there is no ambiguity left for the agency to exploit, and Chevron is irrelevant. It cannot issue a contrary regulation.

  5. Big fan, Gail! I watched your FedSoc debate on this yesterday!

  6. “It’s also true that white students are disciplined at higher rates than Asians and that boys are disciplined at higher rates than girls, though those latter points don’t seem to trouble anyone.”

    It might be that historical concerns and so forth regarding slavery etc. [the “etc.” fills in various other details that make differential treatment in one case not quite the same as differential treatment in another] make racial discrimination involving blacks somewhat more concerning?

    And, people are concerned about differential treatment among sexes/genders in various contexts. Some are also concerned about differential treatment regarding Asians too, again, in certain contexts.

    1. Disparate impact, not treatment. Disparate treatment is facially illegal.

    2. “racial discrimination involving blacks somewhat more concerning?”

      Racial discrimination is either bad or it is not.

    3. “It might be that historical concerns and so forth regarding slavery etc. […] make racial discrimination involving blacks somewhat more concerning?”

      Your comment wrongly conflates discipline rates with racial discrimination. Of course, the “Dear Colleague” letter did too.

  7. Desperate impact is only illegal discrimination when the policy being enforced is unrelated to the legitimate purpose of the organization.

    Griggs v Duke Power said requiring a high school diploma for custodians had a disperate impact, but didn’t relate to how well they could do the job.

    Requiring doctors to have a medical degree has a disperate impact too, but no one argues it’s illegal discrimination.

    Enforcing discipline in schools probably does have disperate impact, but it is firmly related to the core legitimate goals of the school.

    1. Disparate. You spelled it two different ways, neither of them correct. (Although I do like “desperate impact” as a revision of the doctrine.)

    2. “Griggs v Duke Power said requiring a high school diploma for custodians had a disperate impact, but didn’t relate to how well they could do the job.

      Requiring doctors to have a medical degree has a disperate impact too, but no one argues it’s illegal discrimination.”

      You should take another look at Griggs. It was about much more than just the janitor position. And this passage

      “The facts of this case demonstrate the inadequacy of broad and general testing devices, as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that they are not to become masters of reality.”

      might not get you all the way to doctors, but it certainly suggests that requiring lawyers to have a law degree might be unconstitutional.

  8. Welcome to the blog, and thank you for the interesting post.

    Mt view: Obama, and his administration, and the movement to which he belongs, the liberal progressive movement, care to characterize and define and redefine phenomena, behavior, policies, and laws in ways that align with their movement and the movement’s narrative, often in ways that defy logic and wisdom and truth. It is literally Orwellian. Disparate impact from non-discriminatory policy is not racism! I perceive a very strong analogy of this topic to the topic of voter ID requirements. If voter ID results in fewer blacks voting, then let’s fix the reason they don’t vote (if that is, in fact, the cause of that measurement). But requiring ID of all who vote is not racist, per se.

  9. This seems to me an irrelevant argument. While I agree that dictating school policy, outside of DC and federal enclaves, goes beyond the scope of Congress’ enumerated powers, the more important principle is that the Equal Protection Clause requires disciplinary policies of government at any level — including local schools — to be absolutely color-blind, which means that any policy that considers “disparate impact” is simply not permissible, no matter what level of government imposes it.

    Anyone who disagrees with this is a racist.

    1. Equal protection doesn’t apply at the federal level, though the civil rights act does.

  10. As the expression/adage goes, “there are lies, damn lies, and then statistics” This guidance takes a statistic that may or may not be significant or relevant and builds a presumption that has to be overcome. Same deficiencies as many disparate impact discrimination claims that are nothing more than forum shopping for a headline and payoff.

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