School Discipline

Civil Rights Practice Group Teleforum

There has been a sea change in school discipline over the past five years. Schools have dramatically lowered suspensions and expulsions, and moved to curtail in-school law enforcement referrals, despite complaints from parents across the country that this has led to more disorder, bullying, and violence. But what might appear at first glance to be simply an education policy story is, in reality, a case study in a power grab by the administrative state. 

The Obama Department of Education issued a "Dear Colleague" Letter in January of 2014, which represented a dramatic departure in federal civil rights enforcement. For decades, the Department of Education's Office for Civil Rights had investigated and settled cases of disparate treatment (i.e., students being treated differently for the same disciplinary infraction). But the Obama administration claimed authority to also investigate and hold school districts liable on 'disparate impact' grounds: even if the school rules were entirely fair and administered even-handedly, school districts could be held liable if students of different races were disciplined at different rates. Behind the scenes, the Department of Education conducted hundreds of enforcement investigations, which were explicitly intended to leverage pressure from a fait-accompli finding of a civil rights violation (and attendant potential loss of federal funding) to compel school districts to adopt the Obama administration's preferred discipline policies. 

The Trump Department of Education is currently deliberating on what to do about the 2014 Dear Colleague Letter. Aside from the heated politics, it also poses a significant question of administrative and constitutional law: the Obama Department of Education's policy-driven "enforcement" investigations could, in theory, continue even in the absence of a Dear Colleague Letter publicly justifying them. This teleconference will provide an over-view of the policy debate and legal questions, as well as the policy question on which the Trump administration is expected to act this summer. 


Max Eden, Senior Fellow, Manhattan Institute 

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