At his confirmation hearing in 2009, Senator Lamar Alexander famously told Arne Duncan that “President-elect Obama has made several distinguished cabinet appointments, but in my view of it all, I think you are the best.” Duncan had already made statements indicating a willingness to embrace charter schools and break with the unions over teacher evaluations—sentiments not typically expressed by Democratic secretaries of education. And on many issues, Secretary Duncan has not disappointed, regularly pushing a pro-education-reform line, especially via his bully pulpit.
Most intriguing about Secretary Duncan—from my perspective at least—was his early embrace of the theory of “tight-loose” federalism. As he put it in 2012,“ the federal government should be tight on goals,” but state and local leaders should decide how to attain them. “Local leaders, not us, know their children and communities best—to try to micromanage 100,000 schools from Washington would be the height of arrogance,” he said.
Indeed it would be. But trying to micromanage 100,000 schools from Washington is precisely what Duncan has been doing.
In fact, Duncan’s greatest failure—on par with politicizing the Common Core and trying to kill D.C.’s school voucher program—has been his unwillingness to follow through on the “loose” part of his “tight-loose” promise. It feels like there’s been no problem too big or too small for his Department of Education to tackle. This is particularly the case for his Office of Civil Rights (OCR), which has been a prime example of executive overreach and federal interference run amok for almost six years now.
Its actions haven’t just trampled all over federalism and the Tenth Amendment, though they have. They have also made it tougher for local educators and officials to do their jobs well.
THE WAR ON SCHOOL DISCIPLINE
This conflict started in earnest in 2010, when Duncan gave a big speech at the Edmund Pettus Bridge in Selma, Alabama, to mark the forty-fifth anniversary of Bloody Sunday. He and his assistant secretary for civil rights, Russlynn Ali, promised to use “disparate-impact theory” to investigate schools that were disproportionately disciplining minority children or weren’t ensuring equal access to advanced courses. Furthermore, Ali promised to “issue 17 guidance letters that will touch on issues such as how districts should address sexual violence in schools, how nurses should be trained to address students’ food allergies or work with students who have diabetes, and how schools should address the needs of ELLs who are gifted or have disabilities.” No micromanagement there!
These were not empty threats. In January 2014, OCR, along with the Justice Department, rolled out a “Dear Colleague” letter that is certain to have a chilling effect on the use of appropriate school-discipline measures.
The key part of the administration’s policy states,
The administration of student discipline can result in unlawful discrimination based on race in two ways: first, if a student is subjected to different treatment based on the student’s race, and second, if a policy is neutral on its face — meaning that the policy itself does not mention race — and is administered in an evenhanded manner but has a disparate impact, i.e., a disproportionate and unjustified effect on students of a particular race.
As eminent legal scholar Richard Epstein explains in a recent Education Next article,
Much of the analysis turns on the word “unjustified.” Disproportionate rates should not be regarded as unjustified merely because they reflect higher rates of improper behavior by minority students than by white students. But this point is never explicitly acknowledged in the ED and DOJ guidance.
This is the heart of the matter. What if African American and Latino students actually misbehave at higher rates than do white and Asian students? If that’s the case, then race-neutral discipline policies, fairly applied, will result in a greater proportion of minority students receiving punishments. Yet the administration is saying that educators whose legitimate, even necessary, actions produce that result can still be charged with discrimination. Epstein rightly asks,
Just what sanction should apply to a school where discipline is imposed on a color-blind standard yet has statistically imperfect outcomes? Should some white students be summarily suspended, expelled, or otherwise sanctioned to make the numbers come out correctly? Or should schools give a pass to black students who have committed serious offenses in order to achieve the same ends?
Lamentably, it cannot surprise us if minority students today misbehave at “disproportionate” rates. African American and Latino children in America are much more likely to face challenges that put them “at risk” for antisocial behavior. They are more likely to be poor (and much more likely to be extremely poor); more likely to grow up in a single-parent family (nearly always headed by a mother, which is especially problematic for boys growing up); much more likely to have a parent in prison; and much more likely to live in neighborhoods where poverty is concentrated. Civil-rights enforcers should, at minimum, consider these “background variables.” Yet the administration’s policy looks at race alone.
A RIGHT TO ADVANCED PLACEMENT?
Another obsession of Duncan’s OCR has been getting more poor and minority students into advanced courses, such as the College Board’s AP classes. On its face this is a laudable goal, and reform-minded districts (and charter schools) have made much progress in preparing disadvantaged students for the rigors of challenging coursework. But is this an appropriate realm for civil-rights enforcement?
If schools are forced by an OCR investigation to expand access to AP classes for poor and minority kids, what are the chances that they will also do all the complex work it takes (from kindergarten through eleventh grade) to make sure those students are ready? To implement solid curricula, hire stronger teachers, provide extra help for struggling children? Isn’t it much more likely that bureaucrats will simply flood AP courses with unprepared students? We can all guess what the impact will be on the students who are ready for AP coursework, whose classes will be inundated by peers who haven’t mastered the prerequisite material.
Yet that’s precisely the chain of events set in motion by OCR’s latest (and breathtakingly audacious) “Dear Colleague” letter, this one focused on “unequal access to educational resources.” While asserting a federal right to equal spending (something the left has sought ever since its defeat in San Antonio v. Rodriguez), OCR claims (emphasis added),
Equal educational opportunity requires that all students, regardless of race, color, or national origin, have comparable access to the diverse range of courses, programs, and extracurricular activities offered in our Nation’s schools. Students who have access to, and enroll in, rigorous courses are more likely to go on to complete postsecondary education. Further, completing college or other postsecondary education such as a technical certification is increasingly necessary for students to enter careers that will enable them to join the middle class.
Therefore, OCR assesses the types, quantity, and quality of programs available to students across a school district to determine whether students of all races have equal access to comparable programs both among schools and among students within the same school. OCR generally considers a range of specialized programs, such as early-childhood programs including preschool and Head Start, AP and International Baccalaureate courses, gifted and talented programs, career- and technical-education programs, language-immersion programs, online- and distance-learning opportunities, performing and visual arts, athletics, and extracurricular activities such as college preparatory programs, clubs, and honor societies.
So if a district has two high schools—one serving mostly affluent white students and another serving mostly poor and minority students—those schools had better offer a similar number of AP courses, lest the OCR come knocking on their doors. Never mind everything we know about low-income children coming into school with all manner of disadvantages, all of which make them much less likely to be ready for AP-level courses by the twelfth grade. Some will make it there, to be sure, thanks in part to great schools. But to expect equal numbers of rich and poor to be ready for advanced courses is to ignore reams of social science and to engage in wishful thinking.
Each of these examples has three things in common. First, they show a complete disregard for the notion that federal power is limited by our Constitution. Second, they illustrate an almost endless faith in federal bureaucrats’ ability to intervene effectively and positively in faraway places. And third, and most disturbingly, they consistently disadvantage the poor and minority children who deserve our greatest support: those who are already striving to be successful. Schools serving poor and minority students will respond to these dictates by turning a blind eye to discipline problems and by crowding advanced courses with unprepared students.
It’s a perversion of the notion of equal opportunity, and it’s wrong.
This post originally appeared on National Review Online
