Four years ago, the Obama administration promulgated a Dear Colleague letter on school discipline. It was a joint Department of Justice/Department of Education production.
The Dear Colleague Letter applies a disparate impact analysis to school discipline. Its premise is that discipline should be meted out in the same proportion to students of all races. Non-discriminatory treatment isn’t enough. DOJ/DoEd wanted to see equal results.
The Obama DOJ/DoEd policy is perverse. Education remains the pathway to success for minority group members. Education is undermined when unruly students disrupt the process. Thus, black students and their parents have a strong interest in the maintenance of classroom discipline. The Dear Colleague letter is inconsistent with that interest.
Accordingly, I assumed that the Dear Colleague letter would not survive long once President Trump took office. I was wrong.
The Justice Department did its part. It supported rescinding the Dear Colleague letter.
Unfortunately, the Department of Education was unwilling to pull the trigger. I complained about this here.
Finally, a few days ago, the Education Department said it will rescind the Dear Colleague later this year. There was an important caveat, though. DoEd will rescind the letter only after drafting another rule to replace it.
What does this mean? I suspect it means that DoEd is trying to have it both ways. It wants to appease conservatives by saying, “we’re working on it”, but start a drawn out process of drafting alternatives and obtaining public comment in order to delay matters and forestall negative headlines from the liberal press.
If the Department has already decided to pull the letter, what is the point of a long public comment period? A senior DoEd official claims that “just withdrawing the letter without replacing it with another letter interpreting disparate impact more narrowly would do little” to convince school officials to change their discipline policies back.
But many schools don’t need to be convinced. They just need to be set free.
I’m told there are schools that are afraid to implement or enforce policies against tardiness because the letter specifically identifies tardiness policies as something that, even without discriminatory intent, could bring the Federal attorneys knocking on the school door.
These schools likely will jump at the chance to reverse course on tardiness (for example) the minute the Dear Colleague letter is rescinded. They are unlikely to do so while the letter still stands and DoEd is fiddling around developing a replacement policy the contents of which are not known.
The Dear Colleague Letter is an abomination. It should have been rescinded many months ago.
Conservatives should view the Department of Education’s announcement as a victory. We need to keep up the pressure on DoEd until victory is achieved.