Ill-advised Opposition to Rescindment of Fed School Discipline Guidance

Tom Perez rolled out a disparate impact analysis for school disciple cases.

On August 24, 2018, eleven state attorneys general (AGs) sent a letter to Secretary of Education Betsy DeVos and U.S. Attorney General Jeff  Sessions on the letterhead of California’s Office of the Attorney General. The letter was sent via e-mail to the School Safety Commission regarding “States opposition to withdrawal of School Discipline Guidance Package.” Clearly, the AGs were acting in their capacity as officials elected to execute the duties of the “People’s Lawyers.” One would think that the AGs should be concerned about officials in the federal government complying with the rule of law. Sadly, however, the eleven signatories, (all Democrat, and ten whose states did not support the current administration in the 2016 presidential election) are likely politicizing their offices – making a tacit threat of filing a lawsuit should the January 2014 School Discipline Guidance Package be rescinded. After all, filing lawsuits is what AGs do.

Their letter should be interpreted in the context of former U.S. Assistant Attorney General for Civil Rights Tom Perez’s roll-out of disparate impact analysis as described in the January 8, 2014 “Dear Colleague” letter which is one of the four components of the package. Perez, current Chair of the Democratic National Committee, rolled out his new interpretation of the Civil Rights Act in an invitation-only conference of civil rights lawyers hosted by the ED and DOJ in Washington, DC on September 27 and 28, 2010. The conference was entitled, “Civil Rights and School Discipline, Addressing Disparities to Ensure Educational Opportunity.” Readers should question how many of the AGs signing the letter to DeVos and Sessions had received special invitations to attend that conference.

At the conference, Perez announced that the DOJ would use a disparate impact analysis on school discipline cases to determine whether school districts’ policies were racially discriminatory. In other words, Perez introduced a policy derived from Critical Race Theory taught at Harvard Law School, Perez’s alma mater. Disparate impact analysis presumes districts are guilty of racism until proven innocent, even without an actual complaint filed. That presumption is inconsistent with America’s legal tradition and aligned with and UCLA’s School of Law, not with the U.S. Constitution the AGs have sworn to support and defend. Readers should ask why the AGs invoked civil rights as justification for their concerns when Title VI of the Civil Rights Act of 1964 does not address discrepancies data reported for racial groups, such as that reported in the CRDC; instead, it addresses intentional racial discrimination against “persons.”

The March GAO report prominently discussed in the AGs’ letter stated explicitly in Appendix I that parent education or household type (single-versus multiple-headed household) could be related to student behaviors resulting in disciplinary actions analyzed. The report also stated,  “Results of our analyses are associational and do not imply a causal relationship because, for example, CRDC data were not gathered by a randomized controlled trial, where students would be randomized to attend schools with certain characteristics.”

The AGs do not consider that ED and DOJ’s joint “significant guidance” on its face violates the Final Bulletin for Agency Good Guidance Practices § IV, OMB Memorandum M-07-07. “Section II(2)(h) clarifies that, given their legally non-binding nature, significant guidance documents should not include mandatory language such as ‘‘shall,’’ ‘‘must,’’ ‘‘required’’ or ‘‘requirement,’’ unless the agency is using these words to describe a statutory or regulatory requirement, or the language is addressed to agency staff and will not foreclose consideration by the agency of positions advanced by affected private parties.” Despite the OMB’s prohibition, the January 2014 “Dear Colleague” letter employs the prohibited language. While purporting not to impose legal requirements, ED-DOJ used their administrative powers to rewrite Title VI and embedded the new policy in the January 2014 “Dear Colleague” letter. This type of overreach by Departments in the executive branch is not new as the D.C. Circuit observed in Appalachian Power v EPA.

If the AGs really understood the effects of disparate impact analysis on school discipline in minority-majority school districts, they may better understand how the School Discipline Guidance Package actually endangers all students regardless of race, color, religion, or national origin – but perhaps they interpret endangerment for victimization by peers as equal opportunity. It is difficult to justify the content and tenor of the AGs letter in light of the history of the January 2014 “Dear Colleague” letter and the weak evidence the AGs used to defend it. It is inexplicable how they could defend the letter in their official capacity as AGs; but easily explained in the context of their political affiliation.

One thought on “Ill-advised Opposition to Rescindment of Fed School Discipline Guidance

Comments are closed.