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:

*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.

 

Recently, the U.S. Commission on Civil Rights issued the following statement on the Ferguson, Missouri’s decision not to indict Officer Darren Wilson for the death of Michael Brown:

WASHINGTON, Nov. 25, 2014 /PRNewswire-USNewswire/ — The U.S. Commission on Civil Rights by bipartisan majority vote today issued the following statement upon the completion of the work of the grand jury and the State of Missouri’s decision not to indict Officer Darren Wilson for the death of teenager Michael Brown.

We understand the disappointment and anger that many in Ferguson feel with regard to the decision of the grand jury not to return an indictment in the shooting death of Michael Brown. But our nation’s commitment to the rule of law requires that the decision must be afforded our respect and we must abide by the decision. However, this does not mean that inquiries into the deeper issues of inequality and racial disparities raised by members of the African American community in St. Louis County and others in the aftermath of the shooting should end.

Conditions which deny individuals or groups equal protection under the law and which deny valuable opportunities for improvement are not the American way. The Commission applauds the citizens’ work to educate the country about the tensions between communities and law enforcement that have long caused great loss. Although the grand jury has completed its work, the Commission encourages the continued work of citizens and community organizations to address these issues. We also note the ongoing, in-depth investigation of this matter by the Department of Justice (DOJ) regarding the issues of civil rights and police use of force is continuing.  The DOJ investigation has been endorsed by this Commission.

As President Obama remarked, “In too many communities around the country, a gulf of mistrust exists between local residents and law enforcement.  In too many communities, too many young men of color are left behind and seen only as objects of fear.” The Commission has long championed reforms that would combat these tensions and implement more just and effective policing.  In its 1981 report Guarding the Guardians and the 2000 update Revisiting Guarding the Guardians, the Commission raised concerns about law enforcement practices that deny equal protection and opportunity under the law to minority communities. Those members called on lawmakers and civic leaders to enact reforms that increase police accountability and reduce incidents of violence or injustice. We now call on lawmakers to revisit the themes in those 1981 and 2000 reports to review the need for independent community oversight of their law enforcement entities.

Just a few days ago, the Commission’s Advisory Committee in Missouri voted to investigate the issue of interactions in Missouri between law enforcement and communities of color, particularly those interactions that involve the use of force. The Committee will take testimony from police, government officials, community members and experts on community and police interactions.  It intends to hear directly from Missouri residents who have been affected by police use of excessive force.  It will also examine current federal legislation related to discrimination on the basis of race in the administration of justice and make recommendations regarding their findings.

We fully endorse the Missouri Advisory Committee’s approach.  We especially support the notion of Missourians looking into the situation within their own communities. There is nothing more valuable than neighbors seeking to improve their way of life and the way of life of their fellow citizens and communities. We look forward to the results of their investigation. The Commission and its staff will do our part to support them as they proceed.

But while we feel some sympathy with those who feel disappointment with the grand jury decision, we cannot condone the violence and looting that has occurred. At the same time, the actions of a few individuals also cannot override the constitutional rights of citizens to peaceable assembly and protest in the days ahead. We urge restraint by all parties, law enforcement and protesters. We wish to express our condolences to the family of Michael Brown. 

The U.S. Commission on Civil Rights is an independent, bipartisan agency charged with advising the President and Congress on civil rights matters and issuing an annual federal civil rights enforcement report. For information about Commission’s reports and meetings, visit http://www.usccr.gov.

Disclosure: I work at the U.S. Commission on Civil Rights as a special assistant and counsel to Gail Heriot, who was one of the commissioners who voted in favor of issuing this statement. The New American Civil Rights Project website is not affiliated with the Commission, and the views presented on it are not necessarily those of the Commission.

The Obama Department of Education’s crusade against racial disparities in discipline – whether resulting from racial bias or not — marches on. Most recently, the Minneapolis Public Schools entered into an agreement with Education’s Office for Civil Rights promising to address racial gaps in student discipline rates.

“MPS must aggressively reduce the disproportionality between black and brown students and their white peers every year for the next four years,” Minneapolis superintendent Bernedeia Johnson said in a press release. “This will begin with a 25 percent reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018.”

There are several problems with Minneapolis’s approach. First, one federal appellate court has ruled that disciplinary targets or quotas similar to Minneapolis’s violate the Constitution’s Equal Protection Clause. Second, OCR purported to be investigating Minneapolis’s compliance with Title VI of the Civil Rights Act of 1964. 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, many 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 this 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.

For additional comments on Minneapolis’s case, see this excellent blog post by former Education Department lawyer Hans Bader at OpenMarket, an editorial at Investors Business Daily, Robby Soave at Reason magazine, and two Corner posts by Roger Clegg at National Review Online. The Minneapolis Star Tribune and MPR News. Some of these stories note comments from Superintendent Johnson stating that her leadership would review all suspensions of black or brown students involving non-violent offenses; Johnson later clarified her statements to indicate that her team would not be reviewing suspensions prospectively, but only retrospectively and with the goal of better understanding the circumstances around suspensions. Although I am glad to learn that Minneapolis’s policy is not quite as blatantly unconstitutional as it looked at first, I remain troubled that the constitutionally questionable discipline quotas still apparently stand.

                                                                             

 

 

Today, the Fifth Circuit Court of Appeals voted to deny Abigail Fisher’s petition for rehearing en banc in the Fisher v. Texas affirmative action case.  That vote leaves in place a three-judge panel ruling upholding the use of racial preferences in admissions at the University of Texas-Austin. That decision came after the Supreme Court sent the case back to the lower court for a second look.

Ten Fifth Circuit judges (Chief Judge Stewart and Judges Jolly, Davis, Dennis, Prado, Southwick, Haynes, Graves, Higginson, and Costa) voted against rehearing; five (Jones, Smith, Clement, Owen, and Elrod) voted in favor.

Judge Garza filed a brief dissent from the denial of rehearing, which mostly referred to his dissent from the panel opinion. He said, “Clearly the panel majority dutifully bows to Fisher ’s requirements, but then fails to conduct the strict scrutiny analysis it requires, thus returning to the deferential models of Regents of University of California v. Bakke , 438 U.S. 265 (1978), and Grutter v. Bollinger , 539 U.S. 306 (2003). In my dissent, I explain and analyze with some detail the University’s position, in which it fails to furnish any articulated meaning for its stated goal of ‘critical mass.’.. By not providing a clear definition of that end goal, the University eliminates any chance that this court could conduct the “most rigid scrutiny” of its race-conscious admissions program…. Analytically, Fisher requires that the University’s stated goal not be confined to the assessment of the University’s decision to pursue diversity, but also reach the narrow tailoring analysis. “The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal.”

The Project on Fair Representation, which represents Fisher, has pledged to take the case back to the Supreme Court. Edward Blum, president of the Project on Fair Representation, commented that  “Abby Fisher and her family are disappointed with the court’s denial for a rehearing, but remember that they have been in this posture before. This case will be appealed back to the US Supreme Court… The justices had to correct the Fifth Circuit’s errors the first time Abby Fisher took her case to the high court and we look forward to making our arguments to them once again.”

When Fisher went up to the Supreme Court the first time, many court watchers were puzzled that it took the Court months to issue a short 7-1 opinion that merely sent the case back to the lower court. A new book by Joan Biskupic, summarized here by journalist Nina Totenberg (and see also this commentary by law professor Josh Blackman) some insight into what may have really happened: Justice Sonia Sotomayor “was furious about where the majority of her colleagues were and what they were going to do in terms of rolling back affirmative action. So she writes this dissent, circulated privately, and it gets the attention of her colleagues ‘who were’ skittish’ about the case to begin with. Behind the scenes, inside the court, writes Biskupic, tense negotiations ensued for nine months, with individual justices assuming critical roles. ‘Among them, Sotomayor as agitator, Stephen Breyer as broker and Kennedy as compromiser.” In the end, the conservatives backed away; the University of Texas affirmative action policy was allowed to stand, at least for the near future; “and there is no public sign of what Sotomayor had wrought.’ If this is true, it will be harder to fashion such a compromise a second time around, meaning that the Court may be forced to confront the constitutionality of Texas’s policy head-on.

 

Although people who aren’t employment lawyers often don’t think of age discrimination as a civil rights issue, there is nonetheless a comprehensive scheme of federal law protecting workers over 40 from discrimination based on age. Some commentators have called for an expansion of that statutory scheme (see the transcript of this U.S. Commission on Civil Rights briefing on the Age Discrimination in Employment Act.)

Nobody is in favor of bias and invidious age discrimination directed against individuals over the age of 40. Yet a spate of articles from across the political spectrum suggests that it is actually the problems of young Americans that deserve increased attention from policymakers.  Statistics suggest that younger generations are burdened with more educational debt than past generations have been. They are unemployed or underemployed at higher rates than older Americans.  Yet they are also disproportionately responsible for covering the costs of health care for older Americans.

How might employment law work against the interests of young Americans?  Laws regulating employment can serve the commendable purposes of protecting workers from discrimination based on characteristics that are not related to job performance. But these laws also increase the risk that anyone who is fired or demoted will bring costly lawsuits against the employer, meaning that employers may be more nervous about hiring new employees because the cost of a bad hire becomes prohibitively high. These laws thus may make it more difficult for younger workers to find their first jobs. It is also noteworthy that federal age discrimination laws prohibiting employers from discriminating against older workers and limit employers’ use of practices that have an adverse effect on workers over the age of 40. But there is no equivalent protection for age discrimination for younger workers (in contrast to most other anti-discrimination laws, which are symmetrical.)

Increasingly, it appears that employers have attempted to avoid the problem of getting stuck with the wrong employee by first requiring many entry-level employees to work as interns for little or no pay. These practices have long been common in highly desirable fields, such as fashion, entertainment, or the higher levels of politics. But news stories suggest that they are increasingly being employed at less glamorous workplaces.  In any case, the spread of low-paid and unpaid internships will make it increasingly difficult for younger workers from less well-off backgrounds to break into many careers. There have been calls for the federal Department of Labor and its state and local equivalents to use the minimum wage laws aggressively to crack down on unpaid internship programs.  But getting the opportunity to prove oneself to an employer by working for free may be better than having no opportunity to prove oneself at all, meaning that such calls may leave prospective junior employees still worse off.

The Federalist Society will address some of these issues at its National Lawyers Conference this year, to be held at the Mayflower Hotel in Washington, DC from November 13 to 15. The showcase panels addressing the general conference theme include:

 

THURSDAY, NOVEMBER 13

Showcase Panel I: Youth, Employment, and the Law
9:30 a.m. – 11:15 a.m.
Grand Ballroom

This panel will examine intergenerational equity issues raised by employment discrimination laws, including those protecting the elderly from discrimination.  Those laws, minimum wage laws, laws favoring unionization, and laws countering arbitrary dismissal have obvious appeal.  But many of those very laws greatly raise the costs to business of entry-level hiring.  One consequence may be that many young people are only able to enter the work force as interns or fellows.  This may be especially true for minorities.  Are these costs worth the benefits?  Is there some middle ground?

• Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law, and James Parker Hall Distinguished Service Professor of Law, University of Chicago Law School
• Hon. Chai Rachel Feldblum, U.S. Equal Employment Opportunity Commission
• Hon. Gail Heriot, U.S. Commission on Civil Rights, and Professor, University of San Diego School of Law
• Prof. J. Hoult “Rip” Verkerke, Director, Program for Employment and Labor Law Studies, University of Virginia School of Law
• Moderator: Hon. Jennifer W. Elrod, U.S. Court of Appeals, Fifth Circuit

FRIDAY, NOVEMBER 14

Showcase Panel II: Intergenerational Equity and Social Security, Medicare, Obamacare, and Pensions
10:30 a.m. – 12:00 noon
Grand Ballroom

Several major federal programs directly tax the young to provide benefits to the elderly.  This is a main feature of the Affordable Care Act, the Social Security System as it currently works, and of the laws guaranteeing pensions.  In addition, the national debt raises intergenerational equity issues.  What obligations do these debts impose on the young?  Are they all of a piece or are the answers different in each case?  Is it true that this generation is likely to be poorer than the previous one?  What role does our legal system play in this?  How will the law address pensions that contribute to bankrupting cities or states?  What is the nature of the Social Security contract?

• Hon. Christopher C. DeMuth, Distinguished Fellow, Hudson Institute, Inc., and former Administrator for Information and Regulatory Affairs, U.S. Office of Management and Budget
• Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
• Prof. David A. Weisbach, Walter J. Blum Professor of Law and Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory
• Moderator: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit

SATURDAY, NOVEMBER 15

Showcase Panel III: Higher Education: Run for the Benefit of Students or Faculty or Administrators?
9:00 a.m. – 10:30 a.m.
Grand Ballroom

Success in today’s global economy virtually requires a college or post graduate degree, but colleges and law schools have raised tuition enormously.  The government subsidizes students to take huge loans to pay for college and law schools, loans which inflict an increasing burden on students, including law students in a troubled economy.  Do these loans pay as much for faculty research and administrators as for direct student education?  Are faculties producing research that justifies these costs?  Are students getting a good deal now?  Could or will on line education provide students with similar education at a fraction of the cost?  Is it time to ask some hard questions about higher education?  Does education policy benefit average and below average students or does it merely benefit the top of the class?  This panel will focus to a significant degree on law schools.

• Prof. Paul F. Campos, University of Colorado Law School
• Ms. Anne D. Neal, President and Co-founder, American Council of Trustees and Alumni
• Prof. Daniel Polsby, Dean and Professor of Law, George Mason University School of Law
• Prof. Richard Kent Vedder, Ohio University
• Moderator: Prof. Thomas D. Morgan, (retired), The George Washington University Law School

Showcase Panel IV: ROUNDTABLE: Is the Future of the American Dream Bright?
2:15 p.m. – 4:00 p.m.
State Room

America has always been a forward-looking country.  What is the future for our young – for the best and brightest – and for everyone else?  Does the American Dream still apply?  Does our current legal and regulatory system offer the young prospects for a more just and better society, or for an overregulated society that stifles enterprise and compromises individual liberty?  How do we balance these competing concerns and what role can and should our legal system play?  Finally, there has been much discussion recently about income inequality.  Are efforts to address that through law or taxes beneficial or harmful to the young and their vision of a better society?

• Hon. Rachel L. Brand, Member, Privacy and Civil Liberties Oversight Board; Senior Advisor to the U.S. Chamber Litigation Center, United States Chamber of Commerce; and former Assistant U.S. Attorney General for Legal Policy United States Department of Justice
• Hon. Lanny J. Davis, Principal, Lanny J. Davis & Associates, former Special Counsel to the President, and former Member, Privacy and Civil Liberties Oversight Board
• Prof. Neal K. Katyal, Paul and Patricia Saunders Professor of National Security Law and Director, Center on National Security and the Law, Georgetown University Law Center, Partner, HoganLovells US LLP, and former Acting U.S. Solicitor General
• Prof. Randall L. Kennedy, Michael R. Klein Professor of Law, Harvard University Law School
• Dr. Charles A. Murray, W.H. Brady Scholar, American Enterprise Institute
• Moderator: Ms. Karlyn Bowman, Senior Fellow and Research Coordinator, American Enterprise Institute

Interested readers are encouraged to attend!

Patrick Witt, a student at Harvard Law School, has published an op-ed detailing his chilling experience with being accused of sexual assault as an undergraduate at Yale University. Regular readers of the New American Civil Rights Project are likely familiar with the due process concerns that have been raised regarding the Department of Education’s sexual assault guidance. Witt’s story is a powerful reminder of the harm that befalls innocent individuals who get caught up in such kangaroo court proceedings.

Witt writes,  “I am a first-year student at Harvard Law School, and I join the 28 members of our faculty who recently protested the university’s adoption of a new and expansive sexual harassment policy. While I agree wholeheartedly that universities have a moral as well as a legal obligation to provide their students with learning environments free of sexual harassment, I echo the faculty’s concern that this particular policy “will do more harm than good,” and I urge the university to reconsider its approach to addressing the problem.

If considered only in the abstract, many might wonder how a policy with such a laudable aim could draw any serious objections. And I might well have been among them — were it not for the fact that such a policy nearly ruined my life.

Now, in the hopes that my painful and humiliating experience might yet produce some good by improving the final measures adopted, I offer my own story as a real-life example of how this well-intended policy can produce disastrous consequences if it remains detached from the most basic elements of fairness and due process that form the foundation of our legal system.

Harvard’s new policies are substantially similar to those already in effect at Yale, my alma mater. While an undergraduate there, my ex-girlfriend filed an informal complaint against me with the then-newly-created University-Wide Committee on Sexual Misconduct. The committee summoned me to appear and styled the meeting as a form of mediation. Its chairman, a professor with no prior experience handling dispute resolution, told me that I could have a faculty adviser present but no lawyer, and instructed me to avoid my accuser, who, by that point, I had neither seen nor spoken to in weeks. The committee imposed an ‘expectation of confidentiality’ on me so as to prevent any form of ‘retaliation’ against my accuser.

I would say more about what the accusation itself entailed if indeed I had such information. Under the informal complaint process, specific accusations are not disclosed to the accused, no fact-finding takes place, and no record is taken of the alleged misconduct. For the committee to issue an informal complaint, an accuser need only bring an accusation that, if substantiated, would constitute a violation of university policy concerning sexual misconduct. The informal “process” begins and ends at the point of accusation; the truth of the claim is immaterial.

When I demanded that fact-finding be done so that I could clear my name, I was told, ‘There’s nothing to clear your name of.’ When I then requested that a formal complaint be lodged against me — a process that does involve investigation into the facts — I was told that such a course of action was impossible for me to initiate. At any time, however, my accuser retained the right to raise the complaint to a formal level. No matter, the Committee reassured me, the informal complaint did not constitute a disciplinary proceeding and nothing would be attached to my official record at Yale.”

Despite the lack of evidence – or indeed effort to uncover any evidence – against Witt, he relates that he had a full-time job offer rescinded from his summer employer and that the Rhodes Trust suspended him from consideration for one of its prestigious scholarships. Although previously told that he was a likely NFL draft pick, no teams would touch him after the sexual assault accusation was made public. “I cannot begin to describe how exasperatingly difficult it has been to try to explain to people what an informal complaint is and how there was never any evidence — nor any effort made to discover evidence — to substantiate the claim made by my accuser,” Witt wrote. “My summer employer and the NFL certainly couldn’t understand it, and the media flat out didn’t care — the words ‘informal complaint’ were all that was needed to establish my guilt in their eyes.”

You can read the rest here.

At the liberal-leaning online magazine Slate, columnist and recent Yale graduate Katy Waldman indicates that while Witt may be no angel in spite of his outstanding athletic and academic accomplishments, his central argument is still basically sound: “He is right that “by giving to unsubstantiated accusations the confoundingly difficult-to-define title of ‘informal complaint,’ ” Yale plunged him under a cloud of suspicion he couldn’t dispel. He is right that “denying accused students an opportunity to clear their names” is unjust, “detached from the most basic elements of fairness and due process.” Everything Witt says about the power of these sub rosa systems to humiliate and handicap possibly innocent young men is correct.”

 

Recently, the ACLU filed a complaint with the Department of Education’s Office for Civil Rights (“OCR”) about the South Orange-Maplewood, New Jersey district’s discipline and academic tracking policies. OCR has issued high-profile guidances indicating that school districts with racially disproportionate discipline rates and advanced class enrollment rates may violate Title VI’s ban on racial discrimination, even when these differences were not caused by intentional racial discrimination, because of their “disparate impact.” A local education blogger observes that the ACLU may be primarily “interested in using SOMW [South Orange-Maplewood] as a test case for this new application of disparate impact theory.”

Some advocates of disparate impact liability claim that it is necessary to smoke out cases of intentional race discrimination that would otherwise go well-hidden. Yet the ACLU complaint is remarkably forthright in conceding that neither Maplewood’s disciplinary nor academic policies are motivated by racism. Rather, it is concerned only about the “effects” of such policies.

The complaint asks that the district do away with out-of-school suspensions. Although I can understand the argument that these punishments do more harm than good by keeping students out of school and thus causing them to miss out on valuable learning, individual districts ought to be able to weigh the pros and cons of such policies without the threat of a federal investigation. The complaint cites some social science studies suggesting that racial disparities in out-of-school suspensions stem from race discrimination. But, as discussed in footnote 9 of Gail Heriot’s statement for this U.S. Commission on Civil Rights report, many of these studies have significant flaws. A study published since the Commission’s report also indicates that past misbehavior, not hidden racial discrimination, is a better explanation for racial discipline gaps.  The complaint’s proposed alternative disciplinary system– Positive Behavior Intervention Supports, or PBIS —  has its drawbacks (see Heriot dissent, n 19 at page 106, noting that the implementation of PBIS by the Allentown, Pennsylvania school district led to a “culture of defiance” where “[bathrooms are unsafe and trashed, detentions get ignored, study halls are a zoo, and school is dismissed early to quell a potential gang fight with bricks and bats.”

The complaint also asks that the district “eliminate levelling” – that is, put all high school students in Advanced Placement classes (currently the highest academic track) and provide extra support for those students likely to struggle in such a program and also extra enrichment for gifted students who will find the program too easy.

Although sometimes condemned for reinforcing racial and class inequities, there is much good empirical evidence that tracking and ability grouping work, as summarized by this website (which takes the inequity claims seriously.) See also. At the college level, the “mismatch” research also suggests that students learn less if they are placed in courses that are too challenging than they would in classes for which their preparation is a better fit. It is likely that the same principles apply to students placed in college-level courses as high school students when they are not well-prepared for them.

The complaint tells the stories of several individual students who appear to have been treated badly by Maplewood-South Orange (though the reader of course isn’t told the district’s side of the story.) But these stories don’t really appear to be discrimination against African-Americans; one appears to be a story of inadequate response to a disability, and another seems a tale of discrimination against a scholar-athletes who wants to juggle both a demanding academic and athletic schedule. Finally, in the latter case, the student’s Algebra II teacher declined to stay after school to help her because “she was not required to stay after school past 3:28 p.m. due to the teachers’ contract. Perhaps this story is as more a commentary on public employee unionization than it is on racism?

This complaint illustrates the breadth of modern disparate impact theory, under which virtually any educational practice with an adverse effect on one particular group is vulnerable to challenge in court. Because just about any educational policy can have a disparate impact on some group — remember that disparate impact also applies to national origin, meaning that Norweigan Americans can bring suit if they are adversely affected relative to Ukrainian Americans — just about any choice that a local school district makes can be second-guessed by the federal OCR.

It remains to be seen whether OCR will take up the ACLU’s open invitation. If they do, the court hearing the case may have to make a decision about the constitutionality of disparate impact.