Education Secretary Arne Duncan said last week that the Obama Administration will ramp up investigations of civil rights infractions in school districts, which might sound well and good. What it means in practice, however, is that his Office of Civil Rights (OCR) will revert to the Clinton Administration policy of equating statistical disparity with discrimination, which is troubling.
OCR oversees Title VI of the 1964 Civil Rights Act, which prohibits discrimination by race, color or national origin in public schools and colleges that receive federal funding. In a speech last week, Mr. Duncan said that “in the last decade”—that’s short for the Bush years—”the Office for Civil Rights has not been as vigilant as it should have been in combating racial and gender discrimination.” He cited statistics showing that white students are more likely than their black peers to take Advanced Placement classes and less likely to be expelled from school.
Therefore, Mr. Duncan said, OCR “will collect and monitor data on equity.” He added that the department will also conduct compliance reviews “to ensure that all students have equal access to educational opportunities” and to determine “whether districts and schools are disciplining students without regard to skin color.”
The OCR under the Bush Administration rightly focused on reacting to actual complaints of discrimination and issued guidelines to help school districts comply with the law. By contrast, Mr. Duncan plans investigations based on the disparate impact of a school policy, even if no one has alleged any discrimination. Schools and districts that don’t have enough blacks taking college prep courses, or don’t suspend enough whites for fighting, could face litigation or have federal funding withheld.
Inevitably, pressure will be put on districts to get their numbers right and avoid federal scrutiny. Safety is already a major problem in many larger urban schools, where it’s not uncommon for students to pass through metal detectors each morning. If districts are afraid to suspend students for fear of an OCR probe, a bad situation is made worse. And if AP classes will now be monitored for racial balance, schools will resort to quotas, lower standards or no longer offer the courses.
Roger Clegg of the Center for Equal Opportunity also notes that Mr. Duncan’s disparate impact approach to civil rights enforcement may be constitutionally suspect. In a 2001 Supreme Court decision, Alexander v. Sandoval, the Court reaffirmed that Title VI prohibits only disparate treatment and not disparate impact. “There’s no statutory basis for this,” says Mr. Clegg.
Mr. Duncan does minorities no favors by suggesting that racist policies are causing the achievement gap while ignoring the impact of culture, family structure or failing schools. He would do better to focus his department’s energies on improving educational choice, promoting performance-based pay for teachers and other reforms. Parents want better schools, not social engineering.
