A group of leaders of conservative research centers on Tuesday called on Secretary of Education Betsy DeVos to rescind a controversial Obama-era school discipline policy, saying it violates federal law.
The policy, first implemented by a "dear colleague" letter in 2014, sought to reduce preexisting racial disparities in how discipline was being handed out in America’s public schools. The DOE promised to interpret a racially disparate impact of suspensions as discrimination, even in the absence of evidence of discriminatory intent.
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The racial gap in suspensions began to decline in response, as did the number of suspensions overall. An analysis of Wisconsin public schools from the Wisconsin Institute for Law and Liberty—whose president, Rick Esenberg, is a signatory of the letter to DeVos—found that the policy was not always successful and sometimes frustrated teachers, who felt that it curtailed their ability to effectively discipline their classes.
A recently released investigative report from T74 found that similar anti-suspension policies may have lead indirectly to the death of a student in a New York City public school.
Esenberg and his colleagues charged that the policy "is not only poor public policy… but also an illegal exercise of federal administrative power and an unjustified intrusion into state and local matters."
This, they argue, is because while "intentionally disciplining students differently based on race" violates the Civil Rights Act of 1964, otherwise nondiscriminatory actions which have a disparate impact do not violate the same law. The Supreme Court concluded as much in Alexander v. Sandoval, with Justice Antonin Scalia writing that "Title VI [of the CRA] itself directly reaches only instances of intentional discrimination." As such, an executive rule that enforces a disparate impact standard goes above and beyond the authority of federal law.
The consequences of the enforcement of the dear colleague letter have, in fact, led to a discrimination of its own kind, the group of conservatives argue.
"[DOE's Office for Civil Rights] is putting immense pressure on officials, teachers, and administrators to do precisely what Title VI forbids: discriminate on the basis of race by ensuring that students of all races receive punishments of the same type, frequency, and severity, regardless of what the actual circumstances in the classroom dictate," they write.
"The Department of Education's emphasis on the collection and monitoring of racial statistics and its demand that something be done if the numbers come out the wrong way is tantamount to setting impermissible race quotas for disciplinary outcomes," they add.
DeVos is currently said to be reviewing a number of Obama-era policies, with an eye towards their impact on individual states. The signatories of Tuesday's letter likely expect that their argument will add to the evidence against the suspension policy, inducing DeVos to overturn it.