Commissioner Gail Heriot is seeking a special assistant/counsel, who will be a Schedule C political appointee. The Commission is an independent, bipartisan federal agency that advises Congress, the President, and the American people on civil rights (anti-discrimination) matters. Commissioner Heriot is one of its eight members and was appointed to the Commission on the recommendation of Senate Majority Leader Mitch McConnell. More information about the Commission and its publication can be found on its website, https://www.usccr.gov/. All Commissioners are essentially part time employees who travel to Washington about once a month for business meetings and work remotely from their homes or offices the rest of the time. All special assistants/counsel are full-time employees.

Special assistant duties include helping Commissioner Heriot with background research, editing, and drafting of Commissioner statements (essays published in Commission reports), letters, congressional testimony, and public service announcements; investigating potential topics for the Commission to study; identifying potential witnesses for Commission briefings; identifying potential members for the Commission’s state advisory committees; reviewing applications for State Advisory Committee membership and making recommendations to Commissioner Heriot about how to vote on proposed State Advisory Committee slates. Because the special assistant is based in the Washington, D.C. office and Commissioner Heriot lives and works in San Diego, California, the special assistant serves as the Commissioner’s “eyes and ears” in the Washington office and helps to communicate Commissioner Heriot’s positions to the Staff Director and other Washington-based staff.

The ideal candidate is a lawyer with 1-5 years experience, although candidates with slightly different backgrounds but other offsetting strengths will be considered. The special assistant needs to be philosophically and intellectually well-aligned with Commissioner Heriot on major civil rights issues. Although there is no ideological litmus test or party affiliation requirement, a successful candidate is likely to be conservative, libertarian, or some mix of both.

In November and December of this year, President Trump will have the opportunity to appoint two members to the Commission. Each of those members will have the opportunity to hire one special assistant/counsel. Although every special assistant/commissioner pair has a unique relationship and strategy for handling workload, the job duties for those special assistants are likely to be very similar to those for the Heriot position. Commissioner Heriot would also like to collect resumes for those positions.

Special assistants are paid according to the federal GS scale; the special assistant will start somewhere between GS-11 and GS-14, depending on education and past experience.

Please send resumes and cover letters to [email protected] to apply, with cc’s to Alison Somin at [email protected] (Commissioner Heriot’s departing special assistant/counsel) and Carissa Mulder at [email protected] (counsel to another appointed-by-Republican Commissioner, who may assist Commissioner Heriot with searching that takes place after Ms. Somin leaves.) Please address cover letters to Commissioner Gail Heriot, 1331 Pennsylvania  Ave NW, Suite 1150, Washington, DC, 20425.

Commissioners Gail Heriot and Peter Kirsanow, two members of the bipartisan eight-member United States Commission on Civil Rights, are looking for a Commission intern for the winter/spring semester of 2019 and/or summer of 2019. Applications will be accepted and reviewed on a rolling basis.

I (Alison Somin) work as a special assistant and counsel to Commissioner Gail Heriot.  Gail is an independent who was appointed to the Commission on the recommendation of Senator Mitch McConnell. She is also a law professor at the University of San Diego; Commissioners are part-time and travel to Washington approximately once a month to attend to Commission business.

The Commission was founded in 1957 and  is charged with appraising laws and policies “with respect to . . . discrimination or denials of equal protection under the laws of the Constitution of the United States because of color, race, religion, sex, age, disability, or national origin, or in the administration of justice.” In the ad that Commissioner Heriot posted several years ago advertising the position that I now hold, she noted that the Commission can be contentious, but that “Nobody works on more interesting issues than the Commission.”   I’ve come to agree wholeheartedly. I can’t say for 100% certain what issues will be on our plate this coming spring and summer, but I expect to look at federal enforcement of civil rights, school discipline and disparate impact, and the collateral consequences of incarceration.

The intern will assist the two Commissioners and their respective special assistants and counsel (Carissa Mulder is the special assistant/counsel to Peter Kirsanow) with researching and writing essays published in Commission reports; Commissioner letters, which are generally sent to members of Congress, the President, and/or executive branch officials; and possibly with Congressional testimony.  The intern will also work less frequently with some of the appointed-by-Democrat members of the Commission and their special assistants and counsel.

Qualifications include:

(1)     Strong academic credentials

(2)    Broadly defined, philosophical and intellectual compatibility with Commissioners Heriot and Kirsanow. Given the nature of our office and the issues on which we work, we cannot hire “counter-clerks” or interns who aren’t yet sure of their views on the Commission’s core issues. To get a sense of where Commissioners Heriot and Kirsanow stand, I recommend that candidates peruse some of the Heriot and Kirsanow writings found elsewhere on this website, newamericancivilrightsproject.org.  Note that even I don’t agree with 100% of the time with Commissioners Heriot and Kirsanow, so perfect agreement with materials found here is not essential. Someone who is a good fit is likely to identify as a conservative, a libertarian, or some mix of both. It is not required that the intern be affiliated with a particular political party or a supporter of any particular politician or elected official.

(3) Strong interest in the civil rights issues that the Commission studies; previous work or academic experience studying these issues is preferred, although not essential.

(4) Must be willing and able to work out of the Commission’s Washington, D.C. office. For spring semester, that probably means someone who is at a Washington, D.C. area school, though I’m willing to work with someone who is a little bit outside the Washington area but willing/able to come in to the office 1/2 days a week. For summer, that will generally mean that the intern needs to live in the Washington, D.C. metro area.  D.C. has many different affordable dormitory-style or sublet housing options available, and I’m willing to help the intern find something appropriate. Occasional remote work because of job or clerkship interviews, etc. is also generally okay and something that can be worked out on a case-by-case basis.

I am willing to consider current law students or current undergrads. I would tailor the intern’s duties to match his or her background; for example, if the intern is a law student, I would assign more legal research and writing than I would to an intern who is considering law school.

The Commission is not able to hire recent graduates as interns under the regulations governing federal government internships. In the past, Commissioners Heriot and Kirsanow have been able to help place recent graduates at non-Commission organizations with which they work on non-Commission civil rights projects, such as amicus curiae briefs or law review articles. Please send me your resume at [email protected] if you fall into this category, and the Commissioners and I will do what we can to help.

The Commission internship is unpaid. But if the intern is eligible to receive funding from school or from another source, I am happy to work with the person to get the funding and/or to receive course credit for the internship.

Please note that the Commission does not actually enforce any civil rights laws,  so we may not be the best fit for someone looking for litigation experience.

Any students who are interested in the Commission opportunity should send a standard resume and cover letter explaining why he or she is qualified and a good fit for the position to me at [email protected]. I’m also happy to receive e-mails with questions at this address.

— Alison E. Somin

Today, the United States Commission on Civil Rights released a new report on voting rights. Full text of the report can be found here.  Gail Heriot’s individual commissioner’s statement, which takes a rather different perspective than the rest of the report, can be found here: HeriotVotingStatement.

Here is a text of an e-mail that I sent out recently to some listservs about looking for a summer intern. Please read on below for future details about how to apply and the requirements of the position.

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I work as a special assistant and counsel to Commissioner Gail Heriot, who is one member of the eight-member Commission on Civil Rights. Gail is an independent who was appointed to the Commission on the recommendation of Senator Mitch McConnell. She is also a law professor at the University of San Diego; Commissioners are part-time and travel to Washington approximately once a month to attend to Commission business.

The Commission was founded in 1957 and  is charged with appraising laws and policies “with respect to . . . discrimination or denials of equal protection under the laws of the Constitution of the United States because of color, race, religion, sex, age, disability, or national origin, or in the administration of justice.” In the ad that Commissioner Heriot posted several years ago advertising the position that I now hold, she noted that the Commission can be contentious, but that “Nobody works on more interesting issues than the Commission.”   I’ve come to agree wholeheartedly. I can’t say for 100% certain what issues will be on our plate this summer, but I imagine that work on the Commission’s reports on voting rights and police practices will be among those covered.

The intern will assist Commissioners Gail Heriot and Peter Kirsanow and their respective special assistants and counsel (Carissa Mulder is the special assistant/counsel to Peter Kirsanow) with researching and writing essays published in Commission reports; Commissioner letters, which are generally sent to members of Congress, the President, and/or executive branch officials; and possibly with Congressional testimony.  The intern will also work less frequently with some of the other members of the Commission and their special assistants and counsel.

Qualifications include:

(1)     Strong academic credentials

(2)    Broadly defined, philosophical and intellectual compatibility with Commissioners Heriot and Kirsanow. To get a sense of where Commissioners Heriot and Kirsanow stand, I recommend that candidates peruse a website that Commissioner Heriot and I have created in our spare time outside of the Commission, newamericancivilrightsproject.org.  Note that even I don’t agree with 100% of the time with Commissioners Heriot and Kirsanow, so perfect agreement with materials found there is not essential. Someone who is a good fit is likely to identify as a conservative, a libertarian, or some mix of both. It is not required that the intern be a member of any particular political party.

(3)    Strong interest in the civil rights issues that the Commission studies; previous work or academic experience studying these issues is preferred, although not essential.

I am willing to consider current law students, current undergrads, and recent college law or graduates for the position. I would tailor the intern’s duties to match his or her background; for example, if the intern is a law student, I would assign more legal research and writing than I would to an intern who is considering law school.

The internship is unpaid. But if the intern is eligible to receive funding from school or from another source, I am happy to work with the person to get the funding and/or to receive course credit for the internship.

Please note that the Commission does not actually enforce any civil rights laws,  so we may not be the best fit for someone looking for litigation experience.

Any students and recent grads who are interested in this opportunity should send a standard resume and cover letter explaining why he or she is qualified and a good fit for the position to me at [email protected]. I’m also happy to receive e-mails with questions at this address.

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

Here is a link to the full text of the Commission’s majority statement.

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.”[1] 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.[2] “Santa Rosa police driving enforcement efforts routinely include courthouse operations involving drivers with suspended or revoked licenses or who have no licenses.”[3] These practices are quite common, and not just in California.[4]

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.

[1] Fed. R. Crim. P. 4(c)(2).

[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;

[3] Id.

[4] 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

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

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.