Education Department Repeals Harmful Disparate-Impact Regulations

On Thursday, the Department of Education repealed some of its disparate impact regulations, which led some school districts to make discipline decisions based on race. Under Obama and Biden, the Education Department used disparate-impact regulations to undermine school safety and pressure school systems to allow more misbehavior by minority students. Race-conscious curbs on suspensions led to violence in some school districts.

Disparate impact regulations declare policies presumptively discriminatory if they have a greater impact on one race than another race, even if the policy is applied in an “evenhanded” manner to individuals of all races. For example, if more blacks fail a standardized test than whites, that can be considered disparate impact. And if black students violate school rules at a higher rate than white students, then the higher black discipline rate that results could be considered disparate impact, under the Education Department’s interpretation of its disparate-impact regulations.

The disparate-impact regulations the Education Department just repealed were of dubious legality according to the Supreme Court’s decision in Alexander v. Sandoval (2001). The Supreme Court called the arguments for such regulations “strange” and noted that they are not required by Title VI of the Civil Rights Act, which only bans “intentional discrimination.” In footnote 6 of its ruling, the Supreme Court noted that the Title VI statute that the Education Department enforces “permits the very behavior that the regulations forbid” as “disparate impact.”

Lawyer Paul Mirengoff explains that under the Education Department’s disparate-impact regulations, school districts were subjected to federal investigations based on “statistical evidence that a school or school system is imposing discipline on black students to a disproportionate extent compared to students of other races — i.e, that its disciplinary policies have a disparate impact on blacks,” even though “disparities in rates of discipline do not prove, or even suggest, the existence of unlawful discrimination” in violation of the Title VI statute.