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Summary Judgment

With the Year Half Over, Alligators Still Rule the Swamp

Jul 01, 2017 | by William Perry Pendley

Of the many unconstitutional, illegal, and unilateral actions by President Obama and his senior officials, one stood out for me:  an edict instructing all public school administrators that federal law mandates that students be disciplined so as to ensure racial equity.  As someone who has spent much of my professional life litigating against race-based decision making by governments, I was outraged.  Furthermore, before my wife Lis and I entered law school together, she was a public school teacher and knew—as her new book Thursday’s Children reveals—that maintaining discipline in the classroom, regardless of the offending student’s race, was job one.  Therefore, I asked top officials in President Trump’s administration to revoke the Obama administration mandate; the response was disappointing.   

On January 8, 2014, political appointees at the U.S. Department of Justice and the U.S. Department of Education sent a “Dear Colleague” letter to State and local education agencies across the country advising them about “Federal law [regarding] the administration of student discipline based on certain personal characteristics.”  The “Dear Colleague” letter warned the Departments will “initiate investigations” over “racial disparities in student discipline”—in some cases, even when the disparity merely reflects that minority students “are engaging” in specified misconduct “at a higher rate than students of other races.”

On April 3, 2017, I wrote to Attorney General Jeff Sessions and Secretary Betsy DeVos asking that they revoke the letter with which Obama officials implemented its racial equity in school discipline policy as soon as possible.  First, I advised the “guidance” violates the Administrative Procedure Act (APA).  In fact, last August, a federal district court in Texas held that a similar “Dear Colleague” letter, by the same Departments, “violated the notice and comment requirements of the APA,” and barred its enforcement.  A similar fate awaits the racial equity policy when it is challenged.

Next, I reported that the experience of two large school districts that implemented a racial equity school discipline policy had been nothing short of disastrous.  In St. Paul, Minnesota public schools, there was “violence and chaos.”  “[A]t many elementary schools, anarchy reigned.”  In New York City, use of “restorative justice” instead of suspensions made schools “more dangerous than before.  Assaults are up a shocking 40 percent in one year.”

Finally, I quoted experts who condemned the policy.  Michael J. Petrilli, president of the Thomas B. Fordham Institute, called for ending the use of “disparate impact theory” for school discipline.  Jason Riley of the Wall Street Journal, in “An Obama Decree Continues to Make Public Schools Lawless,” questioned why the letter is still official policy given that over half of the nation’s 50 largest school districts have reduced suspensions “to the dismay of those on the front lines.”  A Chicago teacher called her school “lawless.”  An Oklahoma City teacher reported students could not be suspended “unless there was blood.”  A Buffalo, New York teacher cried, “The kids … say, ‘We can’t get suspended—we don’t care what you say.’”  The next week, Hans Bader, a former U.S. Department of Education attorney, wrote in the Wall Street Journal that the policy violates federal law, misinterprets the Civil Rights Act, and pressures schools to violate the Equal Protection Clause.

Soon I received a letter, not from the Attorney General, nor from the Deputy Attorney General, nor from the Acting Assistant Attorney General for the Civil Rights Division, nor from the chief of the Division’s Educational Opportunity Section, but instead from a Division “trial attorney” who “assured” my letter would be given “due consideration.”  Worse yet, she was hired by Attorney General Holder and was busy enforcing the policy I had decried!

Half way through the first year of the Trump administration, it is not just that the government is not staffed fully with political appointees and in many cases the top one or two officials are virtually alone; it is that the wrong people are answering the mail.

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