The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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?