The Department of Education has posted the rescission of Obama era federal regulatory guidance documents encouraging educational institutions to discriminate on the basis of race under cover of the “diversity” and “affirmative action” shibboleths. We previewed the rescission yesterday here. The Department of Education has now posted it here. It comes in the form of a “Dear Colleague” letter signed by senior officers of the Department of Education and the Department of Justice. After listing the specific guidance documents that are now rescinded, the letter provides this concise rationale:
These documents purport to explain the legal framework that governs the use of race by elementary, secondary, and postsecondary schools under the Constitution, Title IV of the Civil Rights Act of 1964 (Title IV), 42 U.S.C. §§ 2000c et seq., and Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d et seq. The documents advocate specific policies and procedures for educational institutions to adopt, analyze a number of hypotheticals, and draw conclusions about whether the actions in those hypotheticals would violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution or Title IV or Title VI of the Civil Rights Act of 1964.
The Departments have reviewed the documents and have concluded that they advocate policy preferences and positions beyond the requirements of the Constitution, Title IV, and Title VI. Moreover, the documents prematurely decide, or appear to decide, whether particular actions violate the Constitution or federal law. By suggesting to public schools, as well as recipients of federal funding, that they take action or refrain from taking action beyond plain legal requirements, the documents are inconsistent with governing principles for agency guidance documents.
Accordingly, the Department of Education and the Department of Justice have decided to withdraw the documents. The protections from discrimination on the basis of race guaranteed by the Constitution, Title IV, and Title VI remain in place. The Departments are firmly committed to vigorously enforcing these protections on behalf of all students.
As I said yesterday, this is unqualifiedly good news. It goes on the credit side of President Trump’s ledger as the Trump administration continues the Great Undoing.