Commissioners Heriot and Kirsanow Respond to Commission on Civil Rights Majority on Proposed Civil Rights Budgets
Recently, Commissioners Gail Heriot and Peter Kirsanow issued the following statement in response to the Commission on Civil Rights majority on President Trump’s budget proposals for several civil rights agencies:
Six members of the U.S. Commission on Civil Rights voted to adopt a statement condemning President Trump’s proposed budget cuts to various civil rights agencies. We dissented from that decision and from the exaggerated rhetoric contained in it.
Contrary to the impression one would get from reading the statement adopted by the majority, the Administration’s proposal modestly increases funding for Department of Justice’s Civil Rights Division. What is really remarkable is not the Trump Administration’s proposal, but rather the fact that despite the Supreme Court’s decision in Shelby County v. Holder (2013), which significantly reduced the Civil Rights Division’s workload, the Obama Administration repeatedly expanded its budget.
Similarly, the statement adopted by the majority expresses concern with budget reductions for the Department of Education’s Office for Civil Rights. But the proposed budget cut is only 1.57%. This is after OCR received an unusually large (7%) budget increase in Fiscal Year 2016. In our opinion that 2016 increase was unjustified. OCR has been exceeding its authority for many years now. We would have cut its budget by a larger amount than the Trump Administration chose.
The majority statement also accuses Education Secretary Betsy DeVos of having “repeated[ly] refus[ed] in Congressional testimony and other public statements to commit that the Department would enforce civil rights laws.” This is over the top. Secretary DeVos never declined to commit to enforcing “civil rights laws.” She interprets those laws differently from our colleagues. She could have made that more clear in her testimony before the Subcommittee Labor, Health and Human Services, and Education of the House Committee on Appropriations if Rep. Katherine Clark (D-MA) had not repeatedly badgered and interrupted her.
The majority statement goes on at length, but we will deal with just one more example: It complains that the Department of Labor’s Office of Federal Contract Compliance Programs is slated to have substantial staff reductions in connection with the planned transfer to the Equal Employment Opportunity Commission. But the whole point of the restructuring is to increase efficiency. The OFCCP and the EEOC deal with similar issues. While we do not necessarily endorse the transfer of functions, we note that avoiding waste in government spending is in everyone’s interest.
A PDF version of the Heriot/Kirsanow budget statement is here: HeriotKirsanowBudgetStatement
Today, Commissioners Gail Heriot and Peter Kirsanow issued the following statement in response to a statement adopted by a majority of the United States Commission on Civil Rights:
On April 24, the majority of the U.S. Commission on Civil Rights issued a statement objecting to Immigration and Customs Enforcement (ICE) agents arresting illegal immigrants in courthouses. We dissent from that statement.
We are concerned that our Commission colleagues do not fully recognize the ramifications of their argument. Presence in a courthouse does not ordinarily confer immunity from arrest. If it doesn’t do so for anyone accused of violating other laws, why should it do so for those accuse df violating immigration laws?
Rule Four of the Federal Rules of Criminal Procedure provides, “A warrant may be executed, or a summons served, within the jurisdiction of the United States or anywhere else a federal statute authorizes an arrest.” There is no exception for courthouses, or anywhere else. Anyone who has an outstanding warrant for anything – whether he is a U.S. citizen, legal resident, or illegal immigrant – can be arrested at a courthouse.
In fact, the police often make a point of arresting people at courthouses. In early 2017, police in Sonoma County arrested five people who had been ordered not to drive, but walked straight out of the courthouse, climbed into their cars, and drove away. “Santa Rosa police driving enforcement efforts routinely include courthouse operations involving drivers with suspended or revoked licenses or who have no licenses.” These practices are quite common, and not just in California.
The majority’s objection to ICE agents arresting illegal immigrants at courthouses appears only partly motivated by concern for illegal immigrants who have been victims of crime. Here is the giveaway: “Courthouses are often the first place individuals interact with local governments . . . for resolution of civil matters, including family and custody issues, housing, public benefits, and numerous other aspects integral to an individual’s life.” By that standard, no illegal immigrants should be arrested at the Department of Motor Vehicles, police stations, or the local IRS office. Consequently, the majority’s objection is not limited merely to the enforcement of immigration laws at courthouses. The majority’s objection to almost any enforcement of immigration laws.
There is no sound policy basis for such an exemption from generally applicable law. On its face, it might make sense that we would want individuals to go to court without fear of arrest. But where does it end?
The majority’s statement does not address an injustice that singles out illegal aliens. Rather, it seeks to carve out special protection for one group of lawbreakers that is unavailable to other groups of lawbreakers. There is no sound basis in law or policy for such solicitude.
 Fed. R. Crim. P. 4(c)(2).
 Randi Rossman, Santa Rosa police net five in courthouse driving sting, The Press-Democrat, February 1, 2017, http://www.pressdemocrat.com/news/6614427-181/santa-rosa-police-net-five;
 Calley Cedarlof, DUI court sting leads to arrests, Poughkeepsie Journal, March 30, 2016, http://www.poughkeepsiejournal.com/story/news/local/2016/03/30/dui-court-sting-leads-arrests/82453232/; Four arrested after Merced courthouse sting, The Modesto Bee, July 19, 2010, http://www.modbee.com/news/local/crime/article3128897.html; Jeremiah Dobruck, Don’t drive, court tells people at DUI hearings; 4 did anyway and got nabbed, L.A. Times, Aug. 4, 2015, http://www.latimes.com/tn-dpt-me-0805-court-sting-20150804-story.html.
A PDF version of the statement is available here: ImmigrationArrestStatementFinal
Commissioners Heriot and Kirsanow Respond to United States Commission on Civil Rights on DOJ Review of Policing Consent Decrees
Today, Commissioners Gail Heriot and Peter Kirsanow issued the following statement:
“We (Gail Heriot and Peter Kirsanow) are issuing this statement as two members of the eight-member bipartisan Commission on Civil Rights, and not on behalf of the Commission as a whole, in response to “U.S. Commission on Civil Rights Urges Department of Justice to Use All Available Tools to Work with Police Departments to Ensure Constitutional Policing.” In that statement, our colleagues said that a memorandum from the Attorney General asking the Deputy Attorney General and Associate Attorney General to re-evaluate certain Department activities involving law enforcement, including consent decrees, sends a message that “reform agreements… may be in jeopardy.”
First, our colleagues’ concerns are premature. The memorandum has asked only for a review of these activities. We do not know yet what the outcome of the review will be.
The Commission correctly notes that an existing consent decree binds both parties until a new agreement is negotiated and that agreement is approved by a judge. But that does not mean that the Department of Justice cannot review its existing consent decrees and try to negotiate new agreements. Indeed, if there are consent decrees that are not serving the public interest’s in securing justice, the Department is ethically obligated to review and revise them.
Second (and more important), our Commission colleagues appear to be confused about federalism. Although they state they are “concerned that the Attorney General’s memorandum points to a deeper misunderstanding of the federal government’s role with respect to state and local law enforcement,” it is the Commission statement that actually misunderstands the federal government’s role with respect to state and local law enforcement. The Attorney General’s memorandum states that “It is not the responsibility of the federal government to manage non-federal law enforcement agencies.” The Commission sees this statement as in tension with the fact that in 1994, Congress enacted a statute giving the Department of Justice with authority to bring pattern and practice investigations for systematic violations of constitutional rights within police departments. We agree with the memorandum that the federal government should not ordinarily be attempting to micromanage the affairs of state and local police departments from afar. Instead, generally police departments should be left to manage themselves. But we also acknowledge that there are cases of systematic violations of constitutional rights in which the federal government has the authority to intervene under the 1994 statute. We see no tension between acknowledging the norm of local control and some exceptions where federal intervention is appropriate.
Testifying as part of a congressional panel, Chair Lhamon went beyond the Commission’s statement and said that ‘It was the height of arrogance to issue that memo.” We are not convinced.
PDF available here: HeriotKirsanowPoliceMemorandumStatementdocx
Why Aren’t There More Black Scientists? Lamar Alexander, Virginia Foxx and John Kline Can Help Remedy the Problem. (Part 2)
In my last blog post, I drew attention to my Wall Street Journal op-ed, Why Aren’t There More Black Scientists?, in which I urge Congress to put an end to efforts by accreditors to force colleges and universities to engage in race preferences (or in greater racial preferences than they would otherwise choose to). I particularly urge Lamar Alexander, Virginia Foxx and John Kline, the leaders in the re-authorization of the Higher Education Act, to action. The reason for my proposal is simple: Race-preferential admissions policies do more harm than good, especially for their intended beneficiaries. See Gail Heriot, A Dubious Expediency: How Race-Preferential Admissions Policies on Campus Hurt Minority Students (2015).
I believe that the my legislative proposal administers a relatively light touch to the problem. No school would be prevented from engaging in race-preferential admissions if that’s what it wants to do. But schools that don’t wish to (or wish to do somewhat less of it) would be freed from the pressure currently being exerted by accreditors.
That initial blog post gave more detailed information than the op-ed on exactly how medical schools are bullied by their accreditor—the Liaison Committee on Medical Education or “LCME”—into greater racial preferences. In this post, I concentrate on law schools.
Like LCME, the Council of the American Bar Association’s Section on Legal Education and Admissions to the Bar (the “ABA”) requires law schools to demonstrate their commitment to diversity. Not long after Grutter v. Bollinger, 539 U.S. 306 (2003), the ABA ramped up its requirements for diversity, apparently in the mistaken belief that Grutter, empowered it to do so. These changes were a significant focus of discussion in a report by the U.S. Commission on Civil Rights. (See U.S. Commission on Civil Rights, Affirmative Action in American Law Schools at 90-137, 175-80 (2007)(“USCCR-AAALS Report”)).
In essence, the ABA enforces a “diversity cartel” among law schools, effectively insulating schools that give large preferences from competition on issues like bar passage rate with schools that would rather give smaller preferences or none at all.
The ABA is fully aware that the only way to comply with its standards is to give preferential treatment to students from under-represented minorities. In its amicus brief in Grutter, it told the Court that “[r]ace-[c]onscious [a]dmissions [a]re [e]ssential to [i]ncreasing [m]inority [r]epresentation in the [l]egal [s]ystem.” “[I]t is unquestionable,” the ABA wrote, “that the improvement in minority participation … has been achieved largely by the use of race-conscious admissions policies such as those under attack here.” Brief Amicus Curiae of the American Bar Association in Grutter v. Bollinger, No. 02-241 at 18-21 (filed February 19, 2003). Nine years later, it took the same position in its amicus curiae brief in Fisher I. Brief Amicus Curiae of the American Bar Association in Fisher v. Texas, No. 11-345 at 20-29 (filed August 13, 2012)(“Race-conscious admissions policies are essential to increasing minority representation in the legal profession”)(original in all capitals).
The ABA has not hesitated to overrule the educational judgment of the law schools it regulates. In 2006, for example, the Charleston School of Law unexpectedly failed to win accreditation from the ABA after a favorable recommendation from its Accreditation Committee. According to news reports, the ABA’s concerns focused in part on race. See James T. Hammond, Charleston School of Law: Fails to Win Accreditation So Students Can Take Bar, The State (Columbia, S.C.) (July 12, 2006). Final accreditation was not awarded until the dean had declared that “[w]hatever we have to do [to win accreditation], we’ll do it” and a new director of diversity was publicly announced. Id.; College Notes: Charleston Law Taps Diversity Director, The State (Columbia, S.C.) B3 (August 13, 2006). See also David Barnhizer, A Chilling Discourse, 50 St. Louis L. J. 361 (2006) (describing ABA influence on faculty diversity-hiring).
The case of George Mason University School of Law is particularly troubling. Its story began with the ABA’s site evaluation team visit in 2000. The site-evaluation team was unhappy that only 6.5 percent of entering day students and 9.5 percent of entering evening students were minorities. (USCCR-AAALS Report at 181)).
Nobody could argue that GMU’s problem was lack of outreach. Even the site evaluation report conceded that GMU had a “very active effort to recruit minorities.” Indeed, it described those efforts at length. It noted, however, that GMU had been “unwilling to engage in any significant preferential affirmative action admissions program.” Since most law schools were willing to admit minority students with dramatically lower academic credentials, GMU was at a recruitment disadvantage. (Id. at 182.)
GMU’s faculty members did not all have the same views on affirmative action. Some members considered even small admissions preferences to be morally repugnant; others believed they would hurt rather than help their intended beneficiaries. But some were willing to put a slight thumb on the scale in favor of African Americans and Hispanics. What set GMU apart from many laws schools was that a strong majority opposed the overwhelming preferential treatment commonly practiced elsewhere. The site-evaluation report noted its “serious concerns” with GMU’s policy. Id.
Over the next few years, the ABA repeatedly refused to renew GMU’s accreditation, citing its lack of a “significant preferential affirmative action program” and supposed lack of diversity. Back and forth the negotiations went. Although GMU could and did step up its already-extensive recruitment efforts, it was forced to back away from its opposition to significant preferential treatment. It was thus able to raise the proportion of minorities in its entering class to 10.98 percent in 2001 and 16.16 percent in 2002. Id. at 183.
None of this was enough. The ABA didn’t want slow, deliberate movement in its direction; it wanted utter capitulation. Shortly after the Court’s decision in Grutter, an emboldened ABA summoned the GMU president and the law school dean to appear before it personally and threatened the institution with revocation of its accreditation on account of its alleged diversity problem. GMU responded by further lowering minority admissions standards and expanding resources devoted to diversity, all in hopes of soothing the ABA’s wrath. As a result, 17.3 percent of its entering students were minority members in 2003 and 19 percent in 2004. USCCR-AAALS Report at 183.
Still the ABA was not satisfied. This time their focus was on African-American students specifically. “Of the 99 minority students in 2003, only 23 were African-American; of 111 minority students in 2004, the number of African Americans held at 23,” the ABA complained. It didn’t seem to matter that sixty-three African Americans had been offered admission or that the only way to admit more was to lower admissions standards to alarming levels. It didn’t even matter that many students admitted under those circumstances would incur heavy debt, but never graduate and pass the bar. GMU’s skepticism about racial preferences was heresy, and the ABA was determined to stamp it out. Id. at 184.
GMU finally got its re-accreditation after six long years of abuse—just in time for the next round in the seven-year re-accreditation process. Id. Sure enough, the ABA’s 2007 site evaluation team report again raised concerns that GMU was not in compliance with ABA diversity standards.
Meanwhile, an important question was not being asked: What happened to the minority students who were admitted in the first round against the GMU’s faculty’s better judgment? The ABA was apparently not so interested in that. The ABA was not making an educational judgment about pedagogy; it was preening itself in an effort to show its highly superficial concern for social justice.
But GMU’s dean, Daniel D. Polsby, was very interested in the fate of his students. In a letter dated January 3, 2008 to Hulet H. Askew, the ABA Consultant on Legal Education (the “Polsby Letter”), responding to the ABA’s 2007 site evaluation report, Dean Polsby patiently explained the damage inflicted by the ABA’s enforcement of diversity standards.
As the ABA failed to recognize, when students attend a school at which their entering academic credentials are well below those of their peers, they will usually earn grades to match. During the period from 2003 to 2005, while GMU was under pressure to increase its racial diversity, African-American students experienced dramatically higher rates of academic failure (defined in GMU’s academic rules as a GPA below 2.15). Fully 45% of African-American law students at GMU experienced academic failure as opposed to only 4% of students of other races.
Dean Polsby put the problem plainly: “We have an obligation to refrain from victimizing applicants, regardless of race or color, by admitting them to an educational program in which they appear likely to fail.” Polsby Letter at 14.
Part of the tragedy, of course, is that the empirical evidence (as explained in my article, A Dubious Expediency: How Race-Preferential Admissions Policies on Campus Hurt Minority Students) indicates that many of these students would have stood a greater chance at success in their goal of becoming lawyers if they had attended a law school at which their entering academic credentials had been more like the median student’s. But the ABA prevented that.
Lamar Alexander, Virginia Foxx and John Kline can eliminate the damage being caused by such over-zealous accreditors. I urge them to do exactly that.
Why Aren’t There More Black Scientists? Lamar Alexander, Virginia Foxx and John Kline Can Help Remedy the Problem.
In my Wall Street Journal op-ed tomorrow (Why Aren’t There More Black Scientists?), I urge Congress to prohibit accreditors from bullying colleges and universities into engaging in greater racial preferences than they would otherwise feel comfortable with. These preferences are hurting rather than helping African-American students to achieve. I particularly call on Lamar Alexander, Virginia Foxx and John Kline, who are the leaders in the re-authorization of the Higher Education Act, to act. I think the best part of my proposal is that it uses a relatively light touch. No college or university that wants to engage in race-preferential admissions would be prevented from doing so. The only effect would be to prevent accreditors from forcing schools to go further than they feel appropriate.
I didn’t get much opportunity to detail how these federally-recognized accreditors function as enforcers of the higher education “diversity cartel.” Let me do that here:
In the academic world, accrediting agencies are frequently the most active enforcers of diversity. In the 1990s, fully 31% of law schools and 24% of medical schools admitted to political scientists Susan Welch and John Gruhl that they “felt pressure” “to take race into account in making admissions decisions” from “accreditation agencies.” (See Susan Welch & John Gruhl, Affirmative Action in Minority Enrollments in Medical School and Law School 80 (1998)).
When accreditors speak, the institutions they govern must listen. For example, the Council of the American Bar Association’s Section on Legal Education and Admissions to the Bar (“ABA”) and the Liaison Committee on Medical Education (“LCME”) are the U.S. Department of Education’s designated accreditation agencies for law schools and medical schools respectively. They get to decide whether a school will be eligible for federal funding, including funding for student loans. Effectively, these accreditors are the federal government.
Note that neither the ABA nor LCME is an academic institution itself. LCME, for example, describes itself as consisting of “medical educators and administrators, practicing physicians, public members and medical students.” See About the Liaison Committee on Medical Education (LCME), available at http://www.lcme.org/about.htm. More importantly, neither is an individual institution. If centralizing forces like the ABA and LCME are given their own “academic freedom,” they have the power to destroy the academic freedom of individual college and universities in those situations where academic freedom is truly appropriate.
There is considerable evidence that the pressure from accreditors to increase diversity is growing (and no evidence of which I am aware to the contrary). I recently conducted a round of state public records requests of state medical schools in cooperation with the California Association of Scholars and the National Association of Scholars. (I sit on the boards of both.) Out of the sixteen schools that have responded or partially responded, half have been cited for problems with diversity. At the University of Nevada Medical School at Reno, for example, the 2009 Survey Team found that “the numbers of students and faculty of diverse backgrounds have been consistently low,” and the 2012 Survey Team found the school to be “noncompliant” with diversity accreditation standards. (Ad Hoc Survey Team, Report of the Secretariat Fact-Finding Survey of the University of Nevada School of Medicine 4, 9 (April 1-3, 2012)).
Similarly, the 2009 Survey Team for Wright State University School of Medicine reported:
“Diversity of the student body has been somewhat problematic. There has been a steady decline in the number of African-American student applicants and students from 309 applicants in 2001 to 241 in 2007, and from 50 total African-American students in 2001 to 32 in 2007. At the same time there are no Hispanic students. The number of Asian students has increased ….”
(Ad Hoc Survey Team, Team Report of the Survey of Wright State University, Boonshoft School of Medicine 2-3 (Hopkins Letter), 38 (March 22-25 2009)).
As a result, the accreditor classified Wright State’s diversity as an area “of transition, whose outcome could affect the school’s ongoing compliance with accreditation standards.”
At the University of South Alabama College of Medicine, the accreditor named diversity as an area of “partial or substantial noncompliance,” finding that “[d]iversity among faculty and students has not increased notably in the past seven years.” (Ad Hoc Survey Team, Team Report of the Survey of University of South Alabama College of Medicine 2 (Moulton Letter) (September 26-29, 2010)).
You can bet that medical schools respond to such pressure by beefing up the level of preference given to under-represented minority students. They have to in order to stay in business. You can also bet that LCME representatives believe this is good for under-represented minority students. But as I explain in A Dubious Expediency: How Race-Preferential Admissions Policies on Campus Hurt Minority Students, the opposite is true. We would have more African-American physicians (and more African-American engineers, scientist, college professors and likely lawyers) if schools practiced race-neutral admissions policies.
If anything, the ABA has been even more aggressive in pushing schools toward greater (and more destructive) racial preferences. But I will demonstrate that in another blog post (coming soon).
Yesterday, the United States Commission on Civil Rights* released a new report* on conditions at immigration detention facilities. As the controversial rhetoric of this year’s presidential campaigns has demonstrated, immigration is a red-hot issue this year and sober, careful research on how immigration laws are being enforced is sorely needed. For reasons that commission members Peter Kirsanow and Gail Heriot** discuss in their statements, however, this Commission report is far from being a model of such research.
““The Commission…went into this project intent on uncovering a scandal. Instead of conducting an actual investigation, it structured its initial fact-finding simply to amplify stale rumor and innuendo,” Commissioner Gail Heriot wrote in dissent. “No effort was undertaken to establish whether the allegations—all of which were already public—were fact or fancy. The point was simply to give the witnesses an opportunity to make the allegations again at our briefing…this time before the C-Span cameras…. It is said that where there is smoke, there is fire. But sometimes where there is smoke, there is only a smoke-making machine, busily stoked by publicists working for activist organizations.”
Thus, the report breathlessly recounts allegations of maggots in the food at the now-closed Willacy County Detention Center in Texas, but strangely ignores two near-in-time government reports that cast serious doubt on the allegation. Likewise, it repeats allegations from MALDEF attorney Marisa Bono of sexual assault, while ignoring an Inspector General report that indicated that those allegations were without factual foundation. It also recounts the story of the death of transgender detainee Victor/Victoria Arellano from HIV/AIDS and strongly implies that ICE acted wrongly. Yet the staff members who wrote the report never asked ICE for their side of the story. When Commissioners Heriot and Kirsanow did, ICE responded that Arellano originally refused treatment because of supposed allergies to the relevant medications, suggesting that the true story of what happened may be more complicated. The Kirsanow dissent catalogues additional problems, among them the use of photographs that purport to portray particular immigration detention facilities but actually appear to been taken elsewhere and the use of misleading statistics about immigration and crime.
Like many other Federalist Society members of a libertarian bent, I am in favor of simplifying immigration law so as to make it easier for more people to live and work in the United States. I am well aware that not all of my right-of-center fellow travelers agree. Coming up with policy solutions that will improve the system at the margin is thus far from an easy task, especially in a world with a seemingly-impregnable welfare state. Repeating lurid allegations about maggot-infested food without carefully examining them to see if they are true does precisely nothing to make a difficult debate easier.
For additional coverage of the Commission report, please see the Tucson Sun, the Los Angeles Times, McClatchy News, CNS News, the International Business Times, the Washington Examiner, Reuters, the Huffington Post, the Southeast Texas Record, and The Washington Times. See also this Wall Street Journal video.
*Commission staff inadvertently omitted Commissioner Kirsanow’s dissent from the version of the final report posted online. I understand that they are working to fix that error, among others. In the meantime, Commissioner Kirsanow’s dissent may be found here.
**I work as Gail Heriot’s special assistant and counsel at the Commission; I helped Gail research and edit the dissent linked to here. The views expressed in this post, however, are mine alone and are not necessarily those of Gail Heriot, the Commission on Civil Rights, or anyone other than me.
***This post was also posted to Fed Soc Blog. I plan to repost all of my civil-rights-related posts for them here, but please do check them out for lots of interesting commentary on many other topics.
The Washington Post has a good article today titled “Why getting into elite colleges is harder for women“:
Getting accepted to an elite college has never been more difficult. So to all the young women who got in this year I say: Great job! You earned it.
To the young men I say: Congrats. But just be thankful you didn’t have to apply as a woman.
Why? Because one of academia’s little-known secrets is that private college admissions are exempt from Title IX’s ban on sex discrimination—a shameful loophole that allows some of the most supposedly progressive campuses in the nation to discriminate against female applicants…
Colleges won’t say it, but this is happening because elite schools field applications from many more qualified women than men and thus are trying to hold the line against a 60:40 ratio of women to men. Were Brown to accept women and men at the same rate, its undergraduate population would be almost 60 percent women instead of 52 percent—three women for every two men.
The Post article cites a string of figures showing that women are accepted to men at lower rates at a number of top private schools. Of course, there is no way to know if the male and female applicant pools at these schools are equally strong. It might be that the higher admission rate for males simply shows that the men (for whatever reason) are more qualified. It’s also hard to know the size of the credentials gap, if any, from just looking at those figures.
In an effort to make this “little known secret” a bit better known, the U.S. Commission on Civil Rights attempted to do a study of sex discrimination in admissions back in 2009. The project was abandoned for what appeared to be political rather than substantive reasons; Gail Heriot, the commissioner who initially proposed the project, and I wrote up the saga of the study’s failure in an article for the Federalist Society’s Engage in 2011.
The Post article states that “This bias in private-college admissions is blatant enough that it can’t be long before ‘gender-blind admissions’ becomes the new campus rallying cry.” For reasons that Heriot and I discussed at greater length in the Federalist Society article, I am less sure that it will be. Allegations of discrimination in admissions have been in the papers off and on for nearly a decade, ever since a Kenyon admissions officer published a New York Times article on the topic. Feminist organizations — who would seem to be the natural leaders of any pro-gender-blind admissions crusade — have been strangely silent on the topic. Indeed, a number actually opposed the Civil Rights Commission’s effort to study the problem just because it contained a single sentence suggesting that current interpretations of Title IX on discrimination in athletics may actually be making the problem worse.
Second, many of the arguments for sex-blind admissions are stunningly similar to those for race-blind admissions. It is telling that the Post article concludes, “So if you’re a recruiter for a Fortune 500 company and two Vassar résumés come across your desk—one from a woman, the other from a man—keep this in mind: It was almost twice as hard for the woman to get into Vassar as it was for the man. Maybe they’re equal candidates. But if you’re playing the odds, I’d say hire the woman.” Yet there would be howls of outrage if the Post even dared suggest that employers might be tempted to do the same for recipients of race preferences. Likewise, the Post article notes that men admitted with preferences graduate at lower rates than do women, likely because of the gap in entering credentials. Yet similar arguments about the “mismatch” problem regarding race and admissions have generally been brushed aside by the Post and other mainstream media.
In other words, so long as the case for gender-blind admissions might strengthen the case for race-blind admissions, I suspect many feminists and other progressives will not be inclined to push for it. That’s a shame. Still, it is a good sign that the Washington Post is at least willing to bring some greater attention to the problem.
In third grade, every girl in my class once had to stand at a flagpole for some transgression long since forgotten (maybe it was lingering over four square for too long before getting to lunch?) At the time, nobody involved — not the teacher, not any of us, not our respective parents — could have imagined that this exciting event was in any way the federal government’s business. Yet the Obama administration now claims that the bread-and-butter of meting out discipline on the playground is indeed the concern of the federal Department of Education and even the White House; it recently convened a day-long conference on the topic and rolled out a self-consciously trendy social media campaign, complete with hashtags, in the hopes of raising the public profile of their efforts to rethink discipline.
Although portions of the #RethinkDiscipline emphasize the benefits of reducing suspension and expulsion rates for students of any race, other portions indicate that the White House and ED see the situation as a race discrimination problem. Several charts near the top of the #RethinkDiscipline home page suggest that black, Hispanic, and Native American students may be suspended at particularly high rates; another page links to a Maryland study on disproportionality in discipline, and yet another explains how students who think that they have been suspended because of race may file a complaint with the Department of Education. While I don’t have particularly strong views on whether suspensions and expulsions are used too frequently or not, I do find that the White House’s efforts to racialize the problem are seriously flawed.
#RethinkDiscipline is not a bolt from the blue. The Obama Department of Education has evinced interest in micromanaging school discipline policies almost since Obama took office, when Secretary Arne Duncan gave a speech on the Pettus Bridge indicating that curbing racial disparities in school discipline would be a major focus of his tenure in office. Later, the Department of Education formalized its position in a guidance document which prohibits both actual discrimination in discipline policies (those that treat students differently based on race) and policies that have a disparate impact (facially race-neutral policies that have a disproportionate effect on students of a particular racial group, regardless of the school official’s actual motivation, if these policies are not necessary to meet an important educational goal and if there are not comparably effective alternative policies that have a less racially adverse effect). The disparate impact portion of the guidance proved the far more controversial of the two.
The United States Commission on Civil Rights* subsequently held a briefing and published a report on the Department of Education’s new discipline policies. The report contains no official findings or recommendations, but it does include several essays by commissioners, some of which were highly critical of the administration’s efforts. I note that, despite the long list of federal office-holders listed as participants in the White House’s discipline summit, none of the commissioners critical of the guidance were invited to share their perspectives. Perhaps their invitations were lost in the mail.
To summarize some of the major reasons to rethink #RethinkDiscipline, based on the Commission’s report and other criticisms found elsewhere:
1. It’s hard to manage student discipline well from afar; those closer to the situation will often best understand best what policies work and which don’t. As Commissioner Gail Heriot put it in her statement attached to the Commission’s report at 108-9:
No doubt Secretary Duncan would argue that his discipline initiative will not assume that all disparate impact is a violation of Title VI. Only that part of a school district’s discipline gap that cannot be explained and justified by the school district will form the basis of a finding of non-compliance with Title VI. But this reflects a lack of understanding of the nature of bureaucracy, the kinds of situations for which it is useful and the kinds of situations where it ordinarily does more harm than good.
The edicts of bureaucracies are usually devoid of nuance by the time they reach the foot soldiers on the ground (in this case, classroom teachers). “Don’t do X unless you have a good reason to do X” is naturally understood by school district administrators as “Don’t do X unless you are confident that you can persuade some future federal investigator whose judgment you have no reason to trust that you had good reason to do X.” In turn, this is communicated to principals as “Don’t do X unless you jump through the following time- consuming procedural hoops designed to document to the satisfaction of federal investigators whose judgment you have no reason to trust that you had good reason to do X.” Finally, this is communicated to the teacher as simply “Don’t do X; it will only get us in trouble.”
2. Loosening up discipline by reducing suspensions and expulsions may ironically make it harder for well-behaved students in inner-city schools to learn. To quote the Heriot statement again:
[I]n general, disorderly students mean disorderly classrooms. And disorderly classrooms make learning less likely to occur—something that both teachers and students recognize. The problem may be significant in many places, but it is particularly acute in inner-city schools and other low-income areas. An article in the San Francisco Chronicle entitled “Students Offer Educators Easy Fixes for Combating Failure,” had this to say on the topic:
Thousands of learned men and women gathered in Sacramento this week to chew over the vexing question of why black and Latino students often do poorly in school, someone had a fresh idea: Ask the students.
So they did. Seven struggling students – black, brown and white – spent an hour Wednesday at the Sacramento Convention Center telling professional educators what works and doesn’t work in their schools. It was the only one of 125 panels at the two-day Achievement Gap Summit convened by state schools chief Jack O’Connell where students had their say.
“If the room is quiet, I can work better – but it’s not gonna happen,” said Nyrysha Belion, a 16-year-old junior at Mather Youth Academy in Sacramento County, a school for students referred for problems ranging from truancy to probation.
She was answering a question posed by a moderator: “What works best for you at school to help you succeed?”
Simple, elusive quiet.
Nyrysha said if she wants to hear her teacher, she has to move away from the other students. “Half our teachers don’t like to talk because no one listens.”
The others agreed. “That’s what made me mess up in my old school – all the distractions,” said Imani Urquhart, 17, a senior who now attends Pacific High continuation school in the North Highlands suburb of Sacramento.”
3. The Department of Education’s guidance is based on a misinterpretation of the relevant law and is arguably unconstitutional. The White House’s efforts to attract additional attention to it will likely encourage more school districts to act illegally.
Some have warned that the Department of Education’s disparate impact guidance may encourage schools to adopt quotas or targets in disciplining students to avoid liability. One federal appellate court has ruled that such disciplinary targets or quotas violate the Constitution’s Equal Protection Clause. Moreover, the guidance claims to be implementing Title VI. But the Supreme Court held in Alexander v. Sandoval that Title VI does not create a private cause of action to enforce disparate impact regulations. Although the holding of Sandoval turned on the private cause of action question and not on the validity of disparate impact regulations themselves, some knowledgeable observers have understood a majority of the Sandoval Court to take the position that Title VI does not authorize disparate impact regulations. This question is discussed in greater depth in the U.S. Commission on Civil Rights report in then-Commissioner Todd Gaziano’s essay at 87-89 and in a public comment submitted by Roger Clegg and Edward Blum at 135-138.
Others have taken the position that disparate impact is unconstitutional. See, e.g., Ricci v. Destefano, 129 S. Ct. 2658 (2009) (Scalia, J. concurring: “ I write separately to observe that [this Court’s] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?”).
Conclusion: One-size-fits-all dresses are generally unfortunate baggy and shapeless garments that flatter no-one. One-size-fits-all educational policies, which also often wind up not working really well for anyone, alas have the even more nefarious effect of holding back learning for entire generations of children. While suspending and expelling less and using other disciplinary methods instead may work well in some school districts, such disciplinary policies may work far less well in others. The White House and Department of Education would do well to consider using a lighter touch here and let local school districts make the decisions about what disciplinary methods work best for them without federal pressure.
*Disclaimer: Although I am a special assistant and counsel to Gail Heriot, one of the eight members of the Commission, I am expressing only my personal views here, which are not necessarily those of the Commission.
At the Grassroots Institute website, Malia Hill writes:
In a victory for transparent government, a state court has ordered the Native Hawaiian Roll Commission to release its enrollment list. The suit was filed by Judicial Watch with the assistance of the Grassroot Institute of Hawaii after an open records request for the Roll was repeatedly denied by the Commission. In a decision that emphasized the importance of open government, the Court rejected the Commission’s reasons for denying the request, requiring the Commission to produce the list and pay attorney’s fees in the case.
Said former Hawai`i Attorney General, Michael A. Lilly, who represented Judicial Watch in the case, “Today, in a victory for open government, Judicial Watch won a case seeking a roll of over 125,000 people allegedly registered with the Native Hawaiian Roll Commission.”
Keli’i Akina, President of the Grassroot Institute stated, “With the release of the Roll, it will now be possible to answer concerns over the tens of thousands of names that have been placed on the list without the express permission of individuals. The fact stands that the vast majority of Hawaiians have chosen not to support the efforts of OHA and the Native Hawaiian Roll to create a sovereign government. Their voices can now be heard. And, hopefully, OHA will stop wasting public money on its unconstitutional push for sovereignty and, instead, spend it on housing, education, employment, and health services for those in need.”
“The Commission was established by the State of Hawai`i to prepare a roll of native Hawaiians,” continued Michael Lilly. “After only a handful of Hawaiians had registered with the Commission, it artificially augmented its roll with three other lists held by the Office of Hawaiian Affairs. The Commission refused to produce the roll in response to a freedom of information request by Judicial Watch. In granting Judicial Watch’s request for the roll, the Hawai`i Circuit Court held that the roll was a public record and thus ordered its disclosure. The Court pointed out that Hawai`i’s open records law was intended to ensure that the formation and conduct of public policy be conducted as openly as possible. The Court will assess against the Commission the reasonable attorney fees and costs incurred by Judicial Watch in having to seek judicial relief.”
The New American Civil Rights Project website has various resources on Native Hawaiian issues, including this letter from four members of the U.S. Commission on Civil Rights to President Obama, this policy paper, and this blog post.
The Commission on Civil Rights did a briefing and a report on the Department of Education’s discipline policy a couple of years ago. This article in the NYPost makes mention of some of the testimony we heard. My conclusions were in keeping with the headline from the NYPost article–“Liberal Discipline Policies are Making Schools Less Safe.” I would add that the effects are especially bad for minority students who are trying to learn amid the classroom disorder. Maintaining order in a classroom full of children or teenagers is never easy. But the Department of Education’s insistence that efforts to do so are racist just makes the job harder.