Trump Should Rescind Obama Guidance on School Discipline
One of the most stunning changes in our system of governance is one the public never voted for. The rise of the administrative state has undermined the traditional notion that Congress makes the law. The legislative branch is no longer the only branch that legislates. Many of the rules we live by are made by federal bureaucrats, sometimes enacted through formal “rule-making” processes, but often imposed by guidance documents and “Dear Colleague” letters, in which officials simply announce what they think the law is and warn the reader (usually local governments or recipients of federal funds) that it would best to go along.
President Obama may have achieved peak administrative state with his infamous declaration that, if Congress wouldn’t pass the laws he wanted, he’d just make them himself. “I’ve got a pen and I’ve got a phone,” he often said.
But “law” that is “made” by one administration can be repealed by the next. The next president and his cabinet can restore the rule of law. That is why Wisconsin Institute for Law & Liberty (WILL) attorneys and leaders in the conservative movement sent a letter to Education Secretary Betsy DeVos on June 12 urging her to rescind the Obama administration’s “Dear Colleague” letter on suspension policy.
The January 8, 2014 letter from the Obama Department of Education and Department of Justice claims that even neutral policies that result in disparate outcomes between various racial groups might violate Title VI of the Civil Rights Act. To be sure, Title VI prohibits intentional discrimination, stating that no student may be excluded from any program that is receiving federal funding on the basis of race. But the Dear Colleague letter goes further, seeking to prevent school districts from “evenhandedly implement[ing] 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.”
Given that nonracial factors affecting student behavior — poverty, family structure, peer influence — are present to differing degrees among different racial and ethnic groups, it is unlikely that even non-discriminatory disciplinary practices will result in racially balanced outcomes. Because any “disparate impact” is presumptively unjustified, the message of the Dear Colleague letter is clear: When it comes to disciplining students, get your numbers right, even if that means ignoring or tolerating disruptive behavior.
As the conservatives’ letter points out, this is bad law and bad policy. It is an unintentional affirmative action program for bad behavior. In Alexander v. Sandoval the Supreme Court ruled “it is beyond dispute” that the relevant provision of Title VI “prohibits only intentional discrimination.” As the Sandoval Court recognized “[D]isparate-impact regulations … forbid conduct that [Title VI] permits.” The Obama-era “Dear Colleague” letter transforms a requirement of even-handedness into a supposedly benevolent mandate to dole out discipline based on the color of a students’ race.
This mandate has a real-world impact. The Department of Education — even after the 2016 election — has used the letter to demand that school districts track the racial impact of their disciplinary policies and address any disparities. For example, the Department of Education’s Office for Civil Rights review culminated last year in a “resolution agreement” with the Milwaukee Public Schools. MPS must “assess whether [it] is implementing its student discipline policies, practices and procedures in a non-discriminatory manner” by collecting “data regarding referrals for student discipline and the imposition of disciplinary sanctions at all District schools.” If there is any disparate impact, a response is required. Although MPS now claims that it has no problem dancing to the federal tune, at the time it entered into the agreement, it told the public that the agreement “was not an option” and that it “had no choice.”
Local school districts who do not wish to risk, as lawyers sometime put it, having a “v.” between their name and the name of their country will make sure that there are no disparate impacts to be addressed. So, in practice, the Obama-era policy forces districts to “step back” their disciplinary practices. Work by WILL, the Manhattan Institute, and others demonstrates that, while this may not eliminate racial disparities, it adversely affects school environment and student outcomes. Ironically, it is often poor and minority students who suffer from being denied the orderly learning environment their white suburban counterparts take for granted.
By intruding into the affairs of local school districts, the Obama-era “Dear Colleague” letter injects Washington into the affairs of school districts across the country, unnecessarily violating principles of federalism and local control. By transforming the law, it is usurping Congress’s legislative power. Respect for the Constitution and the rule of law require that is be rescinded.
Rick Esenberg is president of the Wisconsin Institute for Law & Liberty.