This week, conservative leaders across the country sent a letter, to U.S. Department of Education Secretary Betsy DeVos, explaining that the Obama-era “Dear Colleague” letter on suspension policy is an illegal federal intrusion into local K-12 public schools (see the write-up in the Free Beacon) and urging her to rescind it once and for all. Even though it originated in the Obama Administration, the unlawful “Dear Colleague” letter continues to be used by career bureaucrats and others to impose unwarranted legal obligations resulting in bad disciplinary policy. Joining the lead author, the Wisconsin Institute for Law & Liberty, was the Center for Equal Opportunity, Goldwater Institute, Mackinac Center, Civitas Institute, MacIver Institute and other leading conservative groups.
In January 2014, the Obama Administration issued this infamous “Dear Colleague” letter, which was intended to influence K-12 public school suspension policies by threatening federal action if discipline policies resulted in a “disparate impact” on racial minorities. As we explained, the Obama Dear Colleague letter purported to:
“to assist public elementary and secondary schools in meeting their obligations under Federal law to administer student discipline without discriminating on the basis of race, color, or national origin.” The letter correctly observes that “intentionally disciplining students differently based on race” violates federal law, specifically Title IV and Title VI of the Civil Rights Act of 1964. But it goes further, asserting that (1) even if a school’s discipline policy does not discuss race and (2) even if that policy is applied to students without regard to their race (i.e, there is no intentional discrimination), the policy might still violate federal law if it has a “disparate impact, i.e., a disproportionate and unjustified effect on students of a particular race.”
Failure to follow the “Dear Colleague” letter could result in the United States “seeking redress in court.” As we found out in Milwaukee, this was no idle threat. A few months after the letter, the U.S. Department of Education’s Office of Civil Rights started a compliance review of Milwaukee Public School District (MPS)’s discipline policies to see if they discriminate against black students. While the review started during the Obama Administration, it seemingly continued into the Trump Administration. Late last year, the Department of Education and MPS entered into a “resolution agreement” in which MPS agreed to overhaul its discipline policies.
As a result, this week, conservative attorneys and leaders across the country urged Secretary DeVos to rescind the Obama-era “Dear Colleague” letter. It is equal parts bad law and policy.
First off, it’s an illegal exercise of federal administrative power. The “Dear Colleague” letter relies, not on the text of Title VI of the Civil Rights Act of 1964, but on its regulations that prohibits federal funding recipients under certain circumstances from “utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.”
Yet as the Supreme Court of the United States recognized in Alexander v. Sandoval the relevant provision of Title VI forbids only intentional discrimination, not nondiscriminatory actions with a disparate impact on different racial groups (emphasis added). Federal regulation cannot create authority that does not exist in the authorizing federal law, and thus the rights and duties the Department of Education purported to establish in the “Dear Colleague” letter are built on sand.
Moreover, discipline policy, like much of K-12 education in general, should be determined by the states and local school districts – rather than bureaucrats in Washington D.C. A 2018 study by my colleagues at WILL revealed the Obama-era suspension policies imposed on Wisconsin schools resulted in softer discipline policies which had a negative impact on academic performance. Using 7 years of data from over 2,000 Wisconsin public schools, WILL found lower math and reading proficiency in Wisconsin schools that implemented the Positive Behavioral Intervention and Supports (PBIS) system, a federally funded program the Obama Administration pressured districts to implement. PBIS encourages softer discipline policies to address student behavior, such as pro-active interventions, rather than suspensions.
The Trump Administration deserves credit for continuing to roll back Obama-era regulations that are harmful and illegal. Yet the job is not complete. In Milwaukee, we have witnessed first-hand how the Department of Education is still enforcing Obama’s ‘Dear Colleague’ letter and it has resulted in an unsafe learning environment for teachers and students. We hope that Secretary DeVos, who is considering rescission of the letter, will do the right thing and restore school discipline policy to the place it belongs: local schools and school districts.
CJ Szafir serves as Executive Vice President at the Wisconsin Institute for Law & Liberty.