To the Editor:
The U.S. Department of Education has promised to use “disparate impact” claims to ramp up its anti-discrimination enforcement (“Duncan Vows Tougher Civil Rights Action”, March 17, 2010). Such claims are brought against practices that lead to politically incorrect racial results, even if the practices are nondiscriminatory by their terms, in their design, and in their application.
Your article quotes me, quite correctly, as arguing that such claims are misguided as a matter of policy. They are not about true discrimination, and they pressure schools either to abandon legitimate practices (for example, in disciplining students) or to adopt surreptitious quotas.
But there’s another problem with disparate-impact claims: The regulations they rely on are themselves illegal. That’s because the underlying statute, Title VI of the Civil Rights Act of 1964, bans only true discrimination (“disparate treatment”). The U.S. Supreme Court has hinted that these regulations are, therefore, ultra vires, or beyond legal authority.
Here’s hoping that some district will challenge them.
President and General Counsel
Center for Equal Opportunity
Falls Church, Va.
A version of this article appeared in the March 31, 2010 edition of Education Week as Civil Rights Enforcement: ‘Impact’ or ‘Treatment’