Is Arne Duncan’s new civil rights crusade unconstitutional?

By 03/10/2010

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On Monday, Secretary of Education Arne Duncan announced that his department will expand its efforts in civil rights enforcement.  Its civil rights division will monitor racial disparities in enrollment in college prep classes, school discipline, and teacher assignment. Like everything this sounds fantastic in the abstract.  Who after all publicly declares that they oppose protecting civil rights?

The details, though, paint a more troublesome picture.  First, the shamelessness of it is astonishing.  This is the same Department of Education that can’t support a voucher program in Washington DC to help minority children escape the grinding incompetence of the DC school system.  Now it wants to spend its resources determining whether schools in Fairfax County or Westchester have a disproportionate number of white kids in college prep classes.  Someone’s priorities seem misplaced.  Even Nixon would blush.

Second, it’s hard to see how Duncan can do this without running headlong into the Supreme Court’s 2007 decision in Parents Involved v. Seattle School District No. 1.  Duncan plans on relying on “disparate impact” analysis to show for instance that school districts with a disproportionate number of white students in advanced placement classes are guilty of discrimination.  The cure for that disparate impact will be “robust remedies” like early  intervention programs.  But if (white) parents discover that their children have been denied access to an AP class to ensure racial balancing, they will likely bring suit just like the parents from Seattle in Parents Involved. And chances are, they will win. After all, Justice Kennedy, in his controlling opinion, singled out identifying students based solely on race as unconstitutional.

Third, anyone familiar with the Department of Health, Education, and Welfare’s (HEW) enforcement of the Title VI of the Civil Rights Act in the 1970s knows that we’ve been down this road before and it’s not a smooth ride.  In the notorious Adams v. Richardson litigation HEW became compelled to pursue in the same fashion Duncan has outlined to take on enrollment disparities in school districts across the country.  Political scientist Stephen Halpern in On the Limits of the Law documents the “perverse and insidiously negative” consequences of pursuing these goals through the courts.  As another scholar Jeremy Rabkin noted in Judicial Compulsions, the interests of the students quickly got lost in a “fog of legalisms” to be replaced by the interests of advocacy groups allegedly acting on their behalf.  Both authors emphasized the unintended consequences caused by judicial enforcement.  In the case of Duncan’s announcement, the goal displacement rituals are practically limitless.  At the very least, one can easily envision school districts putting unprepared students in AP classes simply to satisfy the Department of Education.

Fourth, as I show in Complex Justice, when experts and elites from afar try to determine what minority parents and children want and need they often have no idea what they are talking about.  In Missouri v. Jenkins, when the court and its self-appointed experts tried to improve the quality of education for African American children in Kansas City they structured their reforms around what they thought middle-class white children would want.  As a result, after spending more than $2 billion, educational outcomes declined and African American parents became outraged and actually led the effort to end the court’s attempt to help them.  Focusing on college prep classes when many minority children are trapped in dysfunctional and failing urban school system will likely be met with a giant “huh?” from many parents.

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