Education Department Letter Strays Far From Civil Rights Act



By 09/14/2015

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WINTER 2016 / VOL. 16, NO. 1

Contact:
Shep Melnick: shep.melnick@bc.edu
Amanda Olberg: amanda_olberg@hks.harvard.edu, Education Next Communications Office

Education Department Letter Strays Far From Civil Rights Act

Education mandate will create paperwork, not improve minority education

In October, 2014, the Education Department’s Office for Civil Rights (OCR) sent a 37-page “Dear Colleague” letter (DCL) to public schools, detailing what they must do to ensure that all children have “equal access to educational resources without regard to race, color, or national origin.” The letter is the latest in a series of controversial DCLs. Past letters have focused on sexual harassment, programs for English language learners, and school discipline. This one demands that each school district provide a detailed accounting of resources available to each school in order to avoid allegations of racially disparate impacts on school children. Again, in this letter, OCR has attempted to establish regulatory policy unilaterally by setting forth “guidelines” that have not been subject to the usual process of public comment and interagency review.

In a new article for Education Next, Boston College professor Shep Melnick says OCR is on shaky legal ground, since its “Letter” fails to take into account the landmark Rodriguez v. San Antonio Board of Education (1973), which ruled that neither the Constitution nor the Civil Rights Act of 1964 require equal distribution of school resources across school districts. OCR argues that school districts violate Title VI of the Civil Rights Act if they adopt policies that are not intended to discriminate, but do have an adverse effect on some students. Schools must then show there is no comparable alternative policy that would meet the school district’s goals with less discrimination.

Melnick examines the way in which an investigation based on a racially disparate impact analysis in a large school system would play out in practice. The Letter identifies many functions that may be assessed by the federal government in any investigation designed to ensure compliance with its guidelines. According to OCR, unjustified racial disparities may not exist with regard to almost every aspect of school operations, including:

• Overall quality and adequacy of courses ranging from advanced placement to career and technical education to special education;
• Extra-curricular programs, including “the expertise of teachers, coaches and advisors;” and “availability of necessary materials.”
• School facilities, including “the overall physical condition of the school, including paint, maintenance of carpet and locks, and the absence of vandalism.”
• Location and surrounding environment of school buildings.
• Teacher quality, including experience and professional qualifications.

The last item will be of concern to teacher unions. Melnick wonders what will happen when a collective bargaining agreement or state law causes discrimination against students. Will OCR compel the school district to renegotiate labor agreements or revise its personnel policies without regard to the agreement?

Melnick concludes that “collecting all this information for every school in a district will be difficult enough. Providing a non-arbitrary comparison of schools on even one criterion will be nearly impossible…” He says that the agency’s subjective measures of equity grant almost complete control to federal regulators over a district’s administration, something that is at odds with the very structure of the American educational system and will surely damage local control.

Civil Wrongs: Federal equity initiative will promote paperwork, but not equality” is available now on http://educationnext.org and will appear in the Winter 2016 issue of Education Next, on newsstands by November 21.

About the Author
R. Shep Melnick is Professor of American Politics at Boston College. The author is available for interviews.

About Education Next

Education Next is a scholarly journal published by the Hoover Institution that is committed to careful examination of evidence relating to school reform. Other sponsoring institutions are the Program on Education Policy and Governance at Harvard University, part of the Taubman Center for State and Local Government at the Harvard Kennedy School, and the Thomas B. Fordham Foundation. For more information about Education Next, please visit: http://educationnext.org.




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