“Disparate Impact Theory” Dealt a Blow (South Orange-Maplewood follow-up)

Gordon,

I agree that not enough people are talking about this, but based on your post, I don't know if you consider using disparate impact to be a good thing or a bad thing. (never mind the statutory basis for it)

Sound policies and reasonable changes are called for by the disparate impact approach. Mere differences in outcomes are usually insufficient proof of discrimination. With regard to the SOMSD complaint, the author misstated the law with regard to the department of education regulations as they would apply to disparities in discipline or tracking and also misstated the remedies we sought with regard to discipline. I'd encourage all to read the official January 2014 guidance letter issued to all districts on discipline policy by the U.S. Departments of Justice and Education.

If intent to discriminate is not at issue, or not established, the Office for Civil Rights looks at two tests. The first asks whether the policy or practice causing the harmful disparities (the disparate impact) is an educational necessity. If that test is passed, OCR examines whether there are alternatives available that would have less of a discriminatory impact than the policy or practice in question. To find that the school district's policy or practice violates the well established regulations, a much more rigorous review is required by civil rights enforcement agencies and the district would need to fail at least one of the two tests.

In short, the law encourages changes to unsound or unjustifiable policies and practices that produce harmful disparities. Complaints like ours are intended to encourage more effective policies and practices that reduce or eliminate the harmful disparate impact and benefit all students.

Finally, last week the author correctly pointed out a problem in our description of the needed detracking issue and in our requested detracking remedy. Today we sent a letter to OCR and to the district to clarify. We stated, “We do not advocate mandating that
all students be assigned to the most advanced level classes but do want to ensure
that all students have an opportunity to enroll in such classes. Therefore, we would
defer to a process that assumes some degree of deleveling at the middle school and
high school is needed, but would base the detracking on the findings of the latest
research, the opinion of the expert and community input.”

Sincerely,

Dan Losen
The Center for Civil Rights Remedies
The Civil Rights Project at UCLA