You can lose a lawsuit if you minimize your own side’s argument. If you decide to delay a regulation because it will create incentives for illegal racial quotas, then you should come right and out say it will do just that — incentivize quotas — without any equivocation. Yet the Education Department failed to do that. In 2018, it delayed an Obama-era rule that clearly incentivized racial quotas in special education placement and discipline. But it understated the risk: It merely stated that the regulation “may create an incentive … to establish de facto quotas.” Then, when the Education Department was sued by a left-wing special interest group over the delay, Justice Department lawyers representing it minimized the risk even further, saying that the Education Department (ED) “did not find that the 2016 regulations would result in racial quotas, or even that they would incentivize racial quotas. Rather, ED simply concluded that the regulations may or potentially could incentivize [districts] to establish quotas.”
A judge then overturned the delay of the regulation in a court ruling on March 7, citing this language downplaying the risk. As she put it, “The government never ‘even’ found that the 2016 Regulations would incentivize the use of racial quotas,” so “there was no need for the delay at all.” The ruling was issued by Judge Tanya Chutkan, who was appointed by President Obama. She concluded that the Education Department’s finding about the potential risk of quotas was too “drenched in qualification” to warrant a change of course from the Obama administration’s policy in its 2016 “significant disproportionality” regulation.
This is so even though the regulation will in fact lead to racial quotas, as the African-American Wall Street Journal columnist Jason Riley predicted, and legal commentaries have explained in the past. It will lead to black children being denied needed special education services, and white and Asian students being subjected to harsher discipline for the same offenses than black students.
It puts financial pressure on schools to adopt veiled quotas: If a school system has “significant disproportionality” based on race in special education placement or discipline, a lot of its special education money gets diverted to other services. “Disproportionality” is defined in a quota-like way. As the Obama administration said in adopting the regulation, disproportionality is calculated based on “overrepresentation,” which can be due to innocent factors such as the “higher prevalence of a disability in a particular racial or ethnic group,” rather than “over-identification.”
Ironically, there was evidence in the Education Department’s own administrative record that it could have relied upon to show that veiled racial quotas actually happen from “significant disproportionality” regulations — evidence other than that which the judge found insufficient. But the Education Department didn’t even cite it!
The Education Department did cite the example of Texas school districts adopting informal quotas on identification of kids as disabled, under a state numerical indicator that scrutinized districts that identified more than 8.5% of kids as disabled. That seems relevant. But the judge saw it as irrelevant, because it didn’t involve a racial quota.
But there was real evidence of racial quotas, too, which the Education Department didn’t cite. The Center for Equal Opportunity’s Roger Clegg pointed out that similar state disproportionality rules had led to informal, veiled racial quotas in the past, in comments he submitted to the Education Department in May 2018, supporting its proposed delay. As he said, “In the past, similar rules at the state level have led to quotas. State education agencies and associations of special education officials made this clear back in 2016 in their comments.” For example, he cited the May 2016 comment of the National Association of State Directors of Special Education, submitted by Myrna Mandlawitz, which recounted that under a similar state rule, “state staff heard of districts telling parents that there were now quotas for identification, and no more minorities could be identified.”
Far milder scrutiny of racial numbers than the significant disproportionality regulation can also lead to quotas in discipline. The significant disproportionality regulation can lead to a local education agency having 15% of its special education dollars redirected to coordinated early intervening services (CEIS) — potentially millions of dollars. That’s a big incentive to do whatever it takes to avoid being declared significantly disproportionate.
But even much smaller incentives to use race can trigger the use of quotas, such as the informal use of numbers as a yardstick for whether to investigate a school district for discrimination in discipline. As Brian Miller pointed out in a comment, the Minneapolis schools adopted racial quotas in suspensions at the close of an investigation by the Education Department in 2014. As Miller pointed out, such a quota wasn’t mandated by Title VI, the law under which the Education Department’s Office for Civil Rights investigated the Minneapolis schools. Indeed, Title VI is interpreted by courts as forbidding racial quotas. But “even though there wasn’t any legal requirement for a quota,” “Just the scrutiny of its numbers was enough to lead to a quota.”
Miller cited an article in Reason Magazine reporting that the Minneapolis Public Schools had decided to “aggressively reduce the disproportionality between black and brown students and their white peers every year for the next four years. This will begin with a 25 percent reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018.” (See Robby Soave, “Schools Implement Explicit Racial Bias in Suspensions,” Nov. 11, 2014). As Miller said, such a proportionality requirement is an unconstitutional racial quota, under court rulings like one that struck down a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline.” (See People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).
Why did Minneapolis adopt such a quota? The use of a numerical indicator — even though it was milder than those adopted by states under the Obama administration’s 2016 significant disproportionality regulation.
Although Miller didn’t point this out, at the time Minneapolis adopted its quota, the Education Department used a significant-disproportionality ratio as an informal trigger for whether to investigate schools for racism in discipline. If twice as many minorities were suspended as whites, the school district got investigated to see if it was discriminating against minorities in discipline. The Manhattan Institute’s Max Eden described in 2018 how that trigger worked: “If the ‘number of suspended minority students’ / ‘number of minority students’ is more than twice the value of ‘number of suspended white students’ / ‘number of white students,’ then a districtwide investigation proceeds.” (See “OCR’s Approach to the Evaluation, Investigation, and Resolution of Title VI Discipline Complaints” February 2014, quoted in Max Eden, “Enforcing Classroom Disorder: Trump Has Not Called Off Obama’s War on School Discipline,” Manhattan Institute, Aug. 13, 2018).
That numerical trigger was designed to help administer the Obama administration’s January 8, 2014 Title VI guidance on racial discrimination in school discipline — guidance that the Trump administration later withdrew and replaced in December 2018 because it placed undue weight on racial numbers.
The Minneapolis quota happened even though the pressure to use race from Title VI investigations is much milder than from the IDEA’s “significant disproportionality” regulation. It appears that no school district ever lost a penny of its federal funding due to a Title VI racial discrimination investigation of student discipline, even under the Obama administration. In Title VI investigations, “statistics alone” were not considered proof of discrimination, even though they could trigger an inquiry into whether discrimination was occurring.
By contrast, under the IDEA, a finding of significant disproportionality in discipline can lead to 15% of a school district’s special education money being diverted to CEIS. That is a much more serious consequence, that school officials emphatically do not want and will do a lot to avoid.
So if using a two-to-one racial ratio led to a quota under Title VI, it can definitely lead to quotas under the IDEA, which has more teeth. And many states define significant disproportionality as a ratio of roughly 2-to-1 (or even less) in their “risk ratio threshold” for various forms of disciplinary action. For example, Colorado sets a “risk ratio threshold” of 2.31 for “out-of-school suspension” for “10 days” or less. If suspensions exceed that for “children of a particular race,” then that triggers a finding of significant disproportionality, a finding that can lead to large amounts of money being redirected to CEIS and away from what a local education agency would prefer to spend it on. (See Powerpoint presentation, “Colorado’s definition of significant disproportionality SY2018-19 & SY 2019-20”). Other states have even lower risk ratio thresholds. That is a big incentive to have a veiled racial quota.
Indeed, using a ratio of two-to-one or even three-to-one should be deemed an unconstitutional incentive to use race, as a matter of law. When racial proportionality rules incentivize the use of race, they can violate the Constitution, even if there is no evidence of a racial quota being adopted yet, or producing any racial discrimination yet. The mere existence of the incentive is enough by itself to violate the Constitution.
For example, the D.C. federal appeals court ruled that an agency’s diversity regulation that led to audits of broadcasters whose workforces contained a smaller percentage of minorities or women than the regional labor force was an unconstitutional incentive to use race. That was true even though the regulation did not base violations solely on statistics, and even though the court did not cite any actual real world example of a white male denied a job due to the agency’s regulation, which, indeed, contained language banning racial discrimination. (See Lutheran Church–Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998)).
Defining significant disproportionality as discipline ratios of 4-to-1 or less incentivizes the use of race, because misbehavior rates for students of different races vary dramatically, commonly 4-to-1 or more. As an anonymous Asian parent said in a comment to the Education Department, in the State of California, Asians are suspended at one-fourth of the white rate, while whites in turn are suspended at one-fourth the black rate. (See Tom Loveless, The 2017 Brown Center Report on American Education: How Well Are American Students Learning?, Brookings Institution, March 2017, at pg. 25).
White racism cannot possibly explain the lower Asian suspension rate, since a white racist is not going to favor Asians over whites in discipline. So obviously, racial differences in student misbehavior rates are real and profound, as a 2014 study in the Journal of Criminal Justice found. Courts have rejected the idea that “misbehavior” is “a randomly distributed characteristic among racial groups,” and thus ruled that “disparity” in discipline rates “does not constitute discrimination.” (See Coalition to Save Our Children v. State Board of Education of the State of Delaware, 90 F.3d 752, 775 (3d Cir. 1996); Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 305, 332 (4th Cir. 2001)).
Given that misbehavior rates can differ by a ratio of 4-to-1, any risk ratio threshold of less than 4-to-1 — and that includes most risk ratio thresholds used nationally — will incentivize racial quotas. This is powerful evidence that the 2016 significant disproportionality regulation will in fact lead to racial quotas.
The Education Department could, and should, have cited this Asian American commenter’s astute observation in support of its delay of the Obama-era regulation. That would have illustrated how the risk-ratio thresholds commonly used by states to comply with the regulation can lead to quotas.
But for some reason, it didn’t pay attention to this comment explaining how the “significant disproportionality” methodology could lead to quotas. Nor did it cite the comments by Brian Miller and Roger Clegg chronicling how quotas do in fact happen in the real world, due to even milder regulations or agency policies than that involved in the Obama administration’s 2016 significant disproportionality regulation.
The Education Department apparently downplayed the risk of quotas in order to justify allowing states to voluntarily comply with the Obama-era rule during the period of the delay. It delayed mandatory compliance with the 2016 regulation, which otherwise would have gone into effect in 2018, for two years, but let states voluntarily comply with the Obama-era rule if they wanted to. But it is one thing to force regulated entities to violate the Constitution, and another to merely permit them to do so.
A federal agency has an obligation not to violate the Constitution, and not to force other people to violate the Constitution; but it doesn’t have any constitutional duty to keep others from violating the Constitution or racially discriminating. Indeed, both the 2016 significant disproportionality rule, and its 2018 delay, were issued by an office in the Education Department that only enforces the Individuals with Disabilities Education Act (IDEA), not the Constitution or racial discrimination laws. It may be that purely from the vantage point of the IDEA, the rules states came up with after the 2016 regulation were not much worse than those they had before it.
In any event, even if the delay solved only part of the problem of quotas, by eliminating federally-coerced quotas, while permitting quotas voluntarily adopted by states, it still reduced the pressure for quotas. So it was justifiable as an improvement over the prior status quo. As courts have explained, “Agencies need not address all problems in one fell swoop,” and “Reform may take place one step at a time.” In short, “an agency does not have to ‘make progress on every front before it can make progress on any front.'”
The judge questioned the logic of the Education Department delaying mandatory compliance with the Obama-era rule, even as it permitted voluntary compliance with it. But permitting voluntary compliance makes sense if the rule has not yet been repealed. If a rule is delayed, it may still eventually go into effect rather than being repealed, at which point, compliance will be necessary. Regulated entities often prefer to come into compliance in advance, rather than waiting until the last moment to suddenly try to comply with a complicated new regulation (like the 2016 regulation). Even when the government charts a new course, it can be permissible to grandfather in institutions that acted in accordance with a prior legal regime. Grandfathering in existing arrangements is a valid government policy. For example, the Affordable Care Act grandfathered in existing health care plans rather than subjecting them to most of its new consumer-protection safeguards. So there is no requirement that everybody operate under the same rules.
In delaying the compliance dates for the Obama-era rule, while allowing voluntary compliance in the meantime, the Education Department was simply allowing states to follow whichever policy they chose. It was evenhandedly leaving all state regulations intact, whether or not they followed the controversial approach of the Obama administration. One would have thought that even if states, as “laboratories of democracy,” are permitted to experiment with dubious or unwise policies, the federal government need not impose such policies on a nationwide basis.