While many Americans are on the edge of their seats wondering how the Supreme Court will rule on gay marriage and Obamacare, the education community should be watching to see how it will rule on a housing case from Dallas. In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc., the Court is deciding whether plaintiffs can bring “disparate impact” claims under the Fair Housing Act (FHA). That statute clearly forbids intentional discrimination in housing sales or rentals. But left undecided, until now, is whether it forbids policies that are designed and implemented without discriminatory intent but have some disproportionate effect (i.e., “disparate impact”) based on race or some other legally protected class. In short, “disparate impact theory” allows government agencies to prove racial discrimination without showing that anyone actually did anything to intentionally discriminate. (For example: Race-neutral school discipline policies, implemented fairly, that nonetheless subject African-American males to suspensions and expulsions much more frequently.)
The Court tried to address the same question in both 2011 and 2013 but the cases were settled just before oral argument. Supporters of disparate impact, including the Obama Administration, worked to have the cases settled, fearing that the Court might eliminate its use in a range of federal policies including housing, employment, and education.
It would do so on Equal Protection grounds. Critics of disparate impact have long argued that it inherently violates the 14th Amendment’s guarantee of Equal Protection. Rectifying disparities caused by neutral policies forces the government to impose racial classifications and quotas that require intentional discrimination against other citizens.
This case managed to slip through and it could prove consequential in education. Should the Supreme Court strike down disparate impact, it would end the most mischievous and destructive policies imposed by the U.S. Department of Education’s Office of Civil Rights (OCR) and would also stop pernicious lawsuits (like one just decided in New York) that seek to eliminate basic standards for new teachers.
Over the past two years, OCR has been a one-agency wrecking crew against sound policy and good sense. Using disparate impact analysis it issued profoundly misguided policies on school discipline. As I wrote when they were announced, OCR’s guidelines
will encourage schools to tolerate disruptive and dangerous behavior lest they have too many students of one race being punished. The effect will be to punish students who behave and want to learn since their education will be sabotaged by troublemakers. And the disruptive will certainly learn, and learn quickly, that their schools are now tolerating even more disruptive behavior. Sadly these incentives will be strongest in largely minority, urban school districts, like Baltimore’s, where disruptive student behavior is a more significant problem. Thus, minority students are likely to bear the brunt of these guideline’s harmful effects.
Then last fall OCR decided to wade into school finance under the banner of disparate impact analysis. Disparities in educational resources—even if not intentionally discriminatory– would lead to a friendly investigation by OCR, it made clear. OCR’s “Dear Colleague” letter offered no meaningful standards for what would constitute an actual disparity in resources. Instead it was a grab bag of the incoherent and inconsequential:
In the letter, OCR disavows the idea that equal spending should be the standard for determining unequal resources. A finding of unequal resources oddly might not be based on unequal resources. But that leaves the problem that has afflicted school finance litigation for decades: If money is not the measure of resources and opportunity, then what is? At this point OCR wanders deep into the swamps of supervising and managing schools. It says that it will consider a variety of factors that affect educational outcomes including, among many others, paint, carpets, lockers, heating and air conditioning, laboratory facilities, performing arts spaces, library resources, audio-visual equipment, availability of laptops and tablets, access to Wi-Fi hotspots, graphing calculators, digital simulations, extracurricular activities, and effective teaching and leadership. In short, OCR intends to take the place of school boards, superintendents, state boards of education, governors, and legislatures.
Should the Supreme Court rule that disparate impact analysis violates the Equal Protection clause, OCR’s attempts to micromanage school discipline and finance should come to a quick close. To be clear: Ending the use of disparate impact would have no effect on OCR’s ability to investigate and punish schools that engage in intentional discrimination. In fact, eliminating the use of disparate impact would have the salutary effect of forcing OCR to focus on actual, provable discrimination, instead of letting it skate by with spurious uses of statistical disparities.
But the pernicious use of disparate impact analysis has not been confined to OCR. Just two weeks ago Federal Judge Kimba Wood struck down a New York state test for prospective teachers because African-American and Latino candidates in New York City had a lower passage rate than white candidates. The test, called the Liberal Arts and Sciences Test (LAST-2), was designed to ensure that all teachers had a high-school level knowledge of the liberal arts and sciences. In other words, it ensured that all teachers have basic levels of literacy. But in Gulino v. The Board of Education of the City School District of the City of New York, Judge Wood said that because the passage rate for African-American and Latino candidates was between 54 and 75 percent, city and state officials had to prove that the skills measured by the test were actually related to the job. Interestingly, nowhere in her opinion does Judge Wood compare the passage rate of Asians to that of other groups.
New York has not used LAST-2 since 2012 but its replacement test, The Academic Literacy Skills Test (ALST), is already being challenged because of disparities in passage rates. This test is even more challenging than LAST-2 so if Judge Wood’s reasoning stands undoubtedly ALST will have to be scrapped as well.
Sadly, the victims of this will be the students; in New York City that means minority students will be its primary victims. Thus, disparate impact doctrine, which is supposed to help minority groups, will, once again, inflict punishment on minority students who will be forced to learn from teachers with lower levels of literacy or perhaps even lacking basic levels of literacy—just one more reason for the Supreme Court to send disparate impact to the dustbin of legal history.
— Joshua Dunn