Gail Heriot and Alison Somin have written an important article that will appear in the Texas Review of Law & Politics, “The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline:  Wrong for Students and Teachers, and Wrong on the Law.” It focuses in particular on a “Dear Colleague” letter that was sent by the Obama administration in 2014 to school officials across the country, warning that that the Department of Education would be taking an aggressive “disparate impact” approach whenever student discipline policies led to statistical disproportions on the basis of race and ethnicity. From the day it was sent to the present, the letter has drawn much fire from conservatives who would like to see it withdrawn, including a paper for the Federalist Society’s Regulatory Transparency Project.

The Heriot-Somin article is a invaluable addition to the critique. As its title suggests, it criticizes the letter on both policy and legal grounds. Thus, as a policy matter, the article points out that the letter inevitably discourages schools from disciplining some students who should be disciplined. This does misbehaving students no favors in the long run, and in the short run it guarantees that there will be more classroom disruption, which is a bad thing for well-behaved students who want to learn and the teachers who would like to teach them. These two sets of victims will face not only educational harm but frequently physical endangerment as well.

And the “Dear Colleague” letter encourages schools to discipline students with an eye on race — precisely what the civil rights laws were designed to prohibit. The article explains why this is both bad policy and legally problematic, beginning with the fact that racial quotas are illegal in any context and that the statute relied upon by the Education Department — Title VI of the 1964 Civil Rights Act — has been held by the Supreme Court to ban only disparate treatment and not disparate impact. The Court has indeed made pointed reference to “how strange” it is that a Title VI regulation would take the disparate-impact approach, banning something that the statute itself permits. Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001). 

It should be noted that the Heriot-Somin article is important not only in criticizing the disparate-impact approach in the specific area of school discipline. Much of what it says about the problems of using Title VI as the basis for agency disparate-impact policies will apply as well in the other areas where Title VI has been abused this way, and those areas are legion: not just school discipline but student admissions, and not just education but law enforcement and environmental policy, and in the requirement that federal agencies and federally funded programs use foreign languages.

Finally, the general problems with the disparate-impact approach need to be recognized and addressed — by all three branches of the federal government — not only with respect to Title VI, but for other statutes and regulatory programs; this includes, for example, employment, voting, housing, and credit. Here’s hoping that this article will encourage that scrutiny.