Today, Obama’s new Secretary of Education Arne Duncan sent an ambitious new “Dear Colleague” letter to all K-12 school districts across the country that forbids such districts to “implement policies or practices for providing educational resources that disproportionately affect students of a particular race, color, or national origin, unless the policies and practices are educationally necessary and there are no comparably effective alternatives that can achieve the same goals with less adverse effect.” In other words, OCR believes that it is illegal for school districts to fund programs in ways that affect different racial groups differently — even if the school district’s funding decisions were not motivated by racial bias or the intent to discriminate. The letter cites Title VI of the Civil Rights Act of 1964 as legal authority for this disparate impact guidance, despite a Supreme Court opinion strongly suggests that Title VI does not authorize such disparate impact guidance.

I noted earlier in this space that an earlier Assistant Secretary of Education has said that “disparate impact is woven throughout civil rights enforcement in [the Obama] administration.” Educational funding is just the next item on the laundry list of new areas into which the Obama administration has exported disparate impact liability, which previously  included employer criminal background checks, school discipline ,and housing.

Is disparate impact liability likely to have any better consequences in the educational funding context than it has elsewhere? It is hard for me to be optimistic. One, the guidance seems premised on the idea that increasing the levels of financial resources provided to poor and minority schools will significantly increase achievement and opportunity for these schools’ students. That is certainly a noble goal. Yet much research casts doubt on that assumption. It is therefore entirely possible that this latest OCR effort will lead to increased federal micromanagement of educational programs, without actually doing much to increase achievement among racial and ethnic minority students.

I note also that reducing racial disparities in enrollment in Advanced Placement courses and gifted and talented programs is a major (although not exclusive) focus of the Guidance. Such programs can be a wonderful opportunity for students for whom such courses are the right fit. Tough courses can challenge students to learn more than they might have in the regular curriculum. Advanced Placement and International Baccalaureate programs also have the wonderful benefit of giving students the opportunity to earn credit for college coursework while still in high school — which is especially valuable to low-income students of all races, who are especially keen to save on tuition. Anecdotes from friends and family working in education do lead me to worry that there are some high schools that don’t encourage talented students to step up to the challenge of AP or honors courses. If OCR’s guidance gets more such students to sign up for AP courses, more power to them.

That said, the “right fit” part is key. I’ve written before about the mismatch research that shows that college students in math and science actually learn less than they might otherwise if placed in a class where their credentials are below the median student’s than they would if in a class where their entering credentials are closer to the median. While this research addressed college students, there is every reason to think that the pattern holds for college-level AP courses taken in high school. Or, put differently, OCR’s pushing the wrong students into AP classes could actually cause them to learn less than they would otherwise.

Finally, some schools may also respond by levelling opportunities for everyone – that is, by simply saying no advanced courses or special gifted programs for anyone, rather than attempt to justify to OCR unequal allocation of program among students of different racial backgrounds . Some schools have eliminated sports teams in the past, for example, rather than have to try to justify to OCR why they have different numbers of male and female sports teams. It would indeed be a shame for students of all races seeking challenging opportunities to be told “We’re sorry, but we’re just not going to offering  AP Calculus this year because we can’t get the racial demographics right.” Indeed, low-income students who cannot readily transfer to private schools unaffected by the Dear Colleague letter may be harmed most.