January 21, 2014

Feds threaten schools with disparate-impact liability

By Feds threaten schools with disparate-impact liability

The Obama Administration recently sent a warning to the nation’s schools to not racially discriminate against students.  The warning came in the form of a “dear colleague” letter, which explains how the U.S. Departments of Justice and Education interpret Titles IV and VI of the Civil Rights Act of 1964.

The controversial part of the letter deals with disparate impact, which the letter defines as a school policy’s “disproportionate and unjustified effect on students of a particular race.”  PLF attorneys have written about the government’s abusive uses of the disparate-impact doctrine, including in the school context.  The fear is that the government will prevent schools from punishing unruly students at rates that are racially disproportionate, even if certain students are being unruly.  Schools will use written or unwritten racial quotas, requiring students to be punished along racial lines. And when students break school rules at racially unequal rates, the only way to equalize the punishment is to punish innocent students of a different race or give a free pass to a disruptive student.

As I noted before, changing a policy to eliminate a statistical imbalance is unjust if the imbalance is just.  For example, if males account for 70% of students that receive out-of-school suspensions at a particular school, that imbalance is justified if males commit 70% of suspendable offenses at that school.  One way around this imbalance is to suspend females who commit minor infractions that don’t merit a suspension – and this policy is unfair not only because these female students are punished unduly harshly, but also because they are receiving that punishment because they are female.  A male who committed the same minor infraction would not be suspended, because that would only increase the imbalance.  The other way around the imbalance is to refuse to suspend males who commit serious infractions that merit suspension – and this policy is unfair because it gives a free pass to certain students solely because they are male, and it arguably teaches students that their misconduct won’t have negative consequences.

On the other hand, reliance on statistical imbalances has some usefulness for proving discrimination in the modern age when few people are open about their illegal discrimination.  Under one view, the disparate-impact doctrine is merely a tool for proving intentional discrimination, rather than being a separate form of liability that punishes people for “unintentional discrimination.”

Surprisingly, the Administration’s letter doesn’t stray very far from this view, and that gives some hope that federal bureaucrats won’t be micro-managing school discipline policy.  After all, if the Administration only uses racial imbalance as evidence of intentional discrimination – and not as conclusive proof of discrimination – then the concerns are significantly less.  The problem is that race and sex disparities are common and perhaps inevitable.  We will soon see whether the Administration ends up micro-managing schools and incorrectly rejecting justified disparities, or whether it simply uses the disparities as a tool for rooting out illegal intentional discrimination.  Unfortunately, the Obama Administration has a terrible track record on disparate impact.  The coming months will demonstrate how the Administration is going to enforce these new guidelines.

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