The Education and Justice Departments have withdrawn the Obama administration’s race-based school-discipline guidance. That guidance, contained in a Jan. 8, 2014 “Dear Colleague” Letter, led to a few school systems adopting racial quotas in school discipline. Other school systems, seeking to reduce suspensions of minority students, changed their discipline policies in ways that resulted in increased school violence or classroom chaos.
The Obama administration contributed to these results by applying an extreme version of “disparate impact” analysis that compared the racial breakdown of disciplined students not to the racial breakdown of students who violated school rules, but to the racial breakdown of the overall student body as a whole. That ignored the teachings of the Supreme Court’s disparate-impact rulings, which say that racial disparities should be computed compared to the minimally “qualified population,” not the overall population, and be designed to gauge whether there is something “skewed” about the disciplinary process, not just outcomes in the sense of “bottom-line” results. (See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)).
“Disparate-impact” analysis targets policies that are not racist in intent, but have a disproportionate impact against a racial group that is deemed unjustified. I explained at length in Part II of a 2017 white paper how the Obama administration misapplied disparate-impact theory. This white paper is cited in footnote 33 of the recent report of the federal school safety commission.
Moreover, it is doubtful whether any regulations against disparate-impact in schools cited by the Obama administration are even valid to begin with. As the Supreme Court has noted, the Title VI statute dealing with schools — unlike workplace discrimination laws — doesn’t ban disparate impact; so it is “strange” and probably exceeds the Education Department’s legal authority for it to issue them. (See Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001)).
So even if the Obama administration had applied the concept of “disparate-impact” correctly, it probably just does not apply to schools.
In addition to withdrawing the 2014 school-discipline guidance, the Education Department has now issued a new “questions and answers” document containing examples of what discrimination in school discipline is forbidden. This short document, only 3 pages long, does not contain any examples of “disparate impact,” as opposed to examples of differential treatment based on race. That could mean the Education Department will ultimately not find schools liable for “disparate impact” in school discipline, period. (See Questions and Answers on Racial Discrimination and School Discipline, Dec. 21, 2018).
Or, alternatively, it could just mean that — properly defined — disparate impact in discipline is so much rarer in reality than under the expansive Obama-era definition that it just does not warrant discussion in a brief guidance document containing only a few questions and answers. To constitute “disparate impact” under the definition in my 2017 Federalist Society white paper, a school’s disciplinary process would have to be “skewed” in some way (like innocent Latino students being convicted at a higher rate than innocent whites due to arbitrary school policies that disproportionately harm poor students, who are heavily Latino), and disparate impact would not be shown merely because more blacks than whites violate a school rule (not even a prima facie case of disparate impact), as was the case in Example 6 of the 2014 Obama-era guidance.
Either way, it reflects a rejection of the overly broad “disparate impact” concept pursued by the Office for Civil Rights under the Obama administration.
(Footnote 33 of the Trump administration’s federal school-safety commission report cites Roger Clegg’s criticism of the Obama-era guidance as being overly “aggressive” in its approach to disparate impact, and my white paper noting that the Obama administration defined disparate impact too broadly in the context of school discipline).
In the school-discipline context, such racially-skewed processes amounting to disparate impact (as defined in my white paper) are probably quite rare — too rare to warrant discussion in a brief guidance document that discusses how to detect the far more common problem of overt or veiled differential treatment by individual school officials who may harbor hidden racial biases or have double standards for students of different races.
It is worth noting that the Education Department has not yet withdrawn other Education Department “disparate impact” guidance documents governing contexts where the concept of the “qualified population” has less relevance to disparate impact analysis. Thus, the Trump administration has not yet foreclosed all enforcement of disparate-impact regulations, and may continue to process civil-rights complaints alleging truly unjustifiable disparate impact.
In the long run, to provide clarity to regulated entities, the Trump administration should formally withdraw any Title VI regulations that have been interpreted as banning disparate impact. That will ensure that the government does not exceed its statutory authority under the Supreme Court’s Sandoval decision, which questioned the validity of any Title VI disparate impact regulations. (See Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001)).