Lawyers call for repeal of radical Obama-era education policies

Lawyers call for repeal of radical Obama-era education policies

On Tuesday, the Federalist Society’s Regulatory Transparency Project released a paper about illegal overreaching by the Obama-era Education and Justice Departments, which resulted in unwise federal policies that persist today.

The paper, written mostly by people with a civil rights background, examines three areas in which the government attempted to micromanage educational institutions by imposing new rules that never went through the legally-prescribed rule-making process and purported to do so based on anti-discrimination statutes passed many years ago.

These rules dealt with three areas: (1) transgender bathroom, locker, and dormitory room access under Title IX, a statute which bans discrimination based on “sex,” not “gender identity”; (2) investigations by colleges and schools of sexual assault and harassment claims, also under Title IX; and (3) school districts that suspend more students of one race than another, or whose discipline policies have an unintentional “disparate impact,” under Title VI, a statute which bans intentional racial discrimination.

I authored the section of the paper dealing with topic (3), the 2014 Obama administration “Dear Colleague” letter that pressured schools to have equal suspension rates for different ethnic groups, even if the only reason ethnic groups had different suspension rates was because of students’ conduct, not racism – i.e., different ethnic groups had different rates of violating school rules.

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The Trump administration has taken some action on the first two areas, rescinding two of the Obama administration’s “guidance” documents on transgender issues, and indicating last week that it would rescind one of the Obama administration’s “Dear Colleague” letters on campus sexual harassment and assault tribunals (I agreed with Education Secretary Betsy Devos’s decision to do so).

Roger Clegg of the Center for Equal Opportunity, a member of the Project, wrote in National Review that he hopes that the Trump administration will also take action on the third area, school district discipline policies. As he observes, the Manhattan Institute’s “Jason Riley has an excellent column in the Wall Street Journal…about why the Obama administration’s guidance on school discipline and race was bad law and bad policy.”

Riley, an African-American, points out that the guidance, and the disciplinary policies recommended by the Obama Education Department, have harmed many of the minority students they were supposed to help:

The effects are being felt in schools across the country, leaving black and Hispanic students, the policy’s theoretical beneficiaries, worse off.

After the Los Angeles school district, where more than 82% of students are Latino or black, ended suspensions for nonviolent offenses, the district reported that the number of students who said they felt safe in school dropped to 60% from 72%. When Chicago curbed suspensions, students and teachers felt the increased disorder. And following New York City’s reforms making it more difficult to keep disruptive kids out of the classroom, the schools that showed increased fighting, gang activity and drug use tended to be those with the highest percentages of minority students.

Moreover, Riley points out that there is no evidence that disparities in school suspension rates between different races reflect white racism:

…[T[hese disparities persist in schools with black and Hispanic principals, teachers and administrators, who would have no reason to single out minorities for punishment unless the behavior warranted it.

Moreover, there is also little evidence for the Obama administration’s suggestion that suspensions do not advance an important educational goal except in the most extreme cases, a controversial idea known as the “school to prison pipeline” theory:

Opponents of suspension also claim that it harms children down the road.… But the “school-to-prison pipeline” theory, which has been advocated by activists with the Civil Rights Project at UCLA, among others, has come under increasing scrutiny. There’s plenty of evidence that someone who gets suspended is more likely to drop out of school, but there’s little evidence that the suspension caused the dropping out. In fact, a March paper posted by the University of Arkansas found that students who had been suspended were doing better in math and reading after one year. Suspensions were correlated with improved academic outcomes — the opposite of the chain of negative effects that opponents predicted.

Students who violate school rules are more likely to drop out than other students regardless of whether a school suspends them or not (presumably because people who flout rules are, by nature, more likely to drop out, and later end up in jail, to begin with). And a short suspension appears to make many disruptive students behave better, and learn more, in school.

Curbing suspensions of disruptive students harms the innocent classmates of disruptive students, especially black students. Prof. Joshua Kinsler found that “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom,” and “cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.” Similarly, education researcher Max Eden noted in the New York Post that a “study by a University of Georgia professor found that efforts to decrease the racial-suspension gap actually increase the racial achievement gap.”

This reality is at odds with claims by Obama’s Education Secretary Arne Duncan. He suggested in announcing the new rules that suspensions generally do not advance important educational goals, and thus are illegal if a school does not achieve racial proportionality in suspension rates. Confusing cause and effect, and endorsing the “school-to-prison pipeline” theory, Duncan noted that “suspended students are less likely to graduate on time — and are more likely to repeat a grade, drop out of school, and become involved in the juvenile justice system” than students in general.

Since these remarks by Duncan prefaced the Obama administration’s Dear Colleague letter to the nation’s schools about how to change their school discipline rules, they were widely interpreted as casting doubt on schools’ ability to suspend even extremely disruptive students if a school did not have racially proportional suspension rates.

That is because the Dear Colleague Letter banned racially disproportionate suspension rates resulting even from “neutral,” and “evenhanded” application of colorblind discipline rules, unless they could show that the suspension policy advanced “important educational” goals.  [See Obama Education & Justice Departments, Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, January 8, 2014, at pp. 11, 13, 18-19].

Demanding racial proportionality in suspension rates, as Duncan effectively did, leads to unfairness and racial double standards. Such demands are unconstitutional and a violation of Title VI’s ban on racial quotas.

The Seventh Circuit Court of Appeals made this clear in a ruling by Judge Richard Posner, America’s most famous appeals court judge.  That ruling struck down as unconstitutional a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” concluding that that constituted a forbidden racial quota.

As it noted, “racial disciplinary quotas violate equity” by “either systematically over-punishing the innocent or systematically under-punishing the guilty,” and thus violate the requirement that “discipline be administered without regard to race or ethnicity.” (People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).

Readers can find the Federalist Society paper, which was written by its “Race & Sex Working Group,” at this link.  It is titled, “A Review of Department of Education Programs: Transgender Issues, Racial Quotas in School Discipline, and Campus Sexual Assault Mandates.” It is co-authored mostly by people with a civil rights background, including law professor and civil rights commissioner Gail Heriot; former Civil Rights Commission director Linda Chavez;  and former Deputy Assistant Attorney General for Civil Rights Roger Clegg.

Lawyer and journalist Stuart Taylor, who used to cover legal affairs and the Supreme Court for The New York Times, also helped write it, as the primary author of the section dealing with campus sexual assault and harassment. I was included in the Working Group because I used to practice civil rights law, including a stint at the Education Department’s Office for Civil Rights.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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