The Department of Education's Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law—Part 3

Title VI is not a disparate impact statute, and executive agencies do not have the authority to transform it into one through rulemaking.

This is the third blog installment discussing my article (written with Alison Somin)—The Department of Education's Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law.

In the first installment, I tried to give readers a taste of why the Obama Administration's still-in-effect Dear Colleague Letter, which declares disparate impact in school discipline to be illegal, is bad policy. It forces teachers to tolerate more classroom disorder; disorder makes learning more difficult.

In the second installment, I foreshadowed the legal argument I will make here by pointing out that disparate impact liability makes everything or almost everything presumptively illegal. There is hardly any action a Title VI federal funding recipient might take that doesn't have a disparate impact on some national origin, race or color group. (Remember, there are a lot of national origins out there.) Consequently, liability for disparate impact essentially means that funding recipients must be prepared to justify virtually everything they do as "necessary" (as defined by Griggs v. Duke Power (1971) and its progeny). That's asking a lot of them. Who among us can justify all our actions that way?

In this installment, I want to explain why that means the Obama Administration's initiative is unsupported by law.

The Obama Administration never claimed that Title VI itself imposes liability for disparate impact liability. It is clear that it doesn't. Nor did the Obama Administration claim that a regulation duly promulgated under Title VI prohibits disparate impact in the context of school discipline in particular. Instead, it claimed that two identical regulations—34 C.F.R. § 100.3(b)(2) and 24 C.F.R. § 104(b)(2), which were originally promulgated in 1965–extend Title VI's reach to cover all actions of federal funding recipients that have a disparate impact. I'll call these regulations "all-purpose disparate impact regulations."

The article does not argue that agencies cannot promulgate "targeted disparate impact rules" (by that I mean disparate impact regulations that apply only to some specific kind of activity, e.g. out-of-school suspensions). I'm inclined to believe they can, but that's an issue for another day, since no agency has done so. At minimum, however, if an agency were do so, it would have to (1) build a record showing that in order to deter actual discrimination in that targeted area, it is necessary to issue a regulation that covers disparate impact in that area as well as actual discrimination, and (2) allow a defense to a funding recipient that can prove it was not motivated by race, color or national origin. In effect, an agency should be permitted to promulgate such a rule only if it closely tailors the rule to the task of enforcing Title VI's actual prohibition.

An all-purpose disparate impact regulation is something else entirely. Such a regulation would increase the scope of original statute exponentially, thus making it clear that its purpose is not simply to enforce Title VI, but rather to extend it. That is beyond the scope of any agency's rule-making authority.

The proper comparison is to Congress's authority to pass legislation pursuant to Section 5 of the Fourteenth Amendment. Why? Because Title VI has already been authoritatively interpreted by the Supreme Court to be co-extensive with the Fourteenth Amendment's Equal Protection Clause in UC Regents v. Bakke (1978) (and hence it is not a disparate impact statute under Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977)). Title VI simply applies the Equal Protection Clause (as it concerns race, color and national origin) to federal funding recipients. If a court were to determine that Congress doesn't have the authority to transform the Equal Protection Clause into an all-purpose disparate impact statute pursuant to its Fourteenth Amendment Section 5 power, it is difficult to see how an executive agency would have greater authority to transform Title VI pursuant to its Title VI rulemaking power.

That brings us to City of Boerne v. Flores (1997), which tells us that the test for determining whether Congress is acting within the scope of its Section 5 power is one of congruence and proportionality. The same test should apply to the Title VI regulations.

City of Boerne concerned the Religious Freedom Restoration Act ("RFRA"), which, among other things, purported to presumptively prohibit state action that places a "substantial burden" on the free exercise of religion. See also Board of Trustees of the University of Alabama v. Garrett (2001)(a slightly later case applying the City of Boerne framework in the context of the Equal Protection Clause).

The similarities between City of Boerne and the Title VI regulations are many:

• Just as the Supreme Court has authoritatively held that Fourteenth Amendment free exercise violations occur only when the state acts purposely to constrict free exercise, see Employment Division v. Smith (1990), the Supreme Court has authoritatively decided that the Equal Protection Clause (and hence Title VI) is violated only when the state (or a recipient of federal funds) intentionally discriminates. See Village of Arlington Heights, Bakke, and Alexander v. Sandoval (2001).

• RFRA, the statute at issue in City of Boerne, applied whether or not the state intended to impose a substantial burden. Similarly, the supposedly all-purpose disparate impact regulations promulgated pursuant to Title VI, apply regardless of intent. In neither case was there any record showing that such a broad approach was necessary to effectuate the underlying Constitutional prohibition (in the case of City of Boerne) or the underlying statutory prohibition (in the case of Title VI).

• Under RFRA, to overcome that presumption against state action that substantially burdens the free exercise of religion, a state would have had to demonstrate a "compelling purpose." This is not the same as demonstrating that the state did not have the purpose to interfere with the free exercise of someone's religion. It's a much tougher standard. Similarly, to overcome the presumption against actions with a disparate impact, under the Obama Administration's interpretation of the Title VI regulations, a recipient of federal funds would have to demonstrate necessity. This, again, is not the same as demonstrating lack of discriminatory intent. It's hard avoid the impression that in both cases, the idea is to go further than the underlying law.

In City of Boerne, the Supreme Court held that Section 5 authorizes Congress only to enforce the substantive guarantees of the Fourteenth Amendment. It does not authorize Congress to extend those guarantees, much less extend them as broadly as RFRA did. Since this provision in RFRA was much too broad to be a "congruent" and "proportional" response to actual Fourteenth Amendment violations, it was held to be beyond the scope of Congress' Section 5 powers.

By the same logic, the Title VI regulations are not a congruent and proportional response to actual Title VI violations. They are extraordinarily overbroad.

(By the way, we also disagree with the Obama Administration that the relevant regulations are in fact all-purpose disparate impact regulations (although the Obama Administration was not the first to interpret them that way). But all of that is a separate argument. Our main argument (or at least my favorite argument) is that if 34 C.F.R. § 100.3(b)(2) and 24 C.F.R. § 104(b)(2) were meant to be an all-purpose prohibitions on disparate impact, they were beyond the scope of the executive branch's rulemaking authority under Title VI.)