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Conservative lawyers call on Trump to gut federal education mandates on sex, race

‘Disparate impact’ mandate is hurting minorities, not helping them

While the Trump administration has rescinded its predecessor’s regulatory guidance in some areas, it should take a much broader look at Title VI and Title IX regulations on race and sex in education, according to a recent report by the Federalist Society.

In its Regulatory Transparency Project paper, the legal advocacy organization for conservatives and libertarians took particular aim at Department of Education directives, known as “Dear Colleague” letters, that never went through legally prescribed rulemakings.

Its authors include a former lawyer in the department’s Office for Civil Rights, Hans Bader, and U.S. Commission for Civil Rights member Gail Heriot, who has been critical of OCR “overreach” and has been floated as a potential OCR chief.

The report was released days after Education Secretary Betsy DeVos* announced the department’s plan to rescind OCR “guidelines” on how colleges must handle sexual assault and harassment cases and commence a formal “notice and comment” rulemaking. She said her predecessor used “intimidation and coercion.”

DeVos, however, did not rescind those guidelines and issue interim measures until several days after the Federalist Society report was published.

‘Ultimate resolution of the transgender issue still in doubt’

The report reviews three directives: mandatory accessibility to whichever restrooms and locker rooms match a student’s gender identity; “racial quotas” to avoid the “disparate impact” of suspending more students of one race than another, under “neutral” disciplinary measures; and required investigation of all sexual assault and harassment claims.

The department’s 2016 Dear Colleague letter on “civil rights protections for transgender students” said it and the Justice Department would evaluate “compliance with Title IX” based on schools letting transgender students choose which sex-specific facilities they use.

But those obligations were overturned in a February Dear Colleague letter by the Trump administration “in order to further and more completely consider the legal issues involved.” That letter said the prior administration’s definition of “sex” provides no explanation or analysis for how it is “consistent with the express language of Title IX.”

MORE: Law prof who slammed kangaroo courts could lead Trump’s civil rights office

Indeed, “longstanding American custom holds that communal restrooms, locker rooms, and showers should be separated by sex,” the Regulatory Transparency Project report says. “Up until very recently, nearly everyone understood sex to be a biological concept and anatomy to be its primary indicator.”

The February letter says there must be room “for the primary role of the States and local school districts in establishing educational policy.” The rescission led the Supreme Court to remand a transgender bathroom case it had accepted, Gloucester v. G. G., to a lower appeals court.

The report says it still considers the issue active. “Because both the outcome of the Gloucester County case and the ultimate resolution of the transgender issue are still in doubt, this paper’s contributors include the material,” which was written before the February rescission.

MORE: Death threats for law prof who questioned transgender bathroom guidance

The claims made by the Obama administration to justify its 2011 letter laying out new mandates for sexual-misconduct investigations, including that “1 in 5 women are victims” of attempted or completed assault, are undermined by Justice Department statistics showing that young women on campus “were in less danger of being victimized” than women not in college, the report says.

The “rape culture” campaign led by President Barack Obama was designed to “expel or suspend many more accused males,” but it also ended up “channeling victims away from law enforcement” as well as forcing universities to “weaken due process” for those accused.

Cut suspensions and students feel less safe

The only subject area in the report that has not been affected by actual or planned Trump administration rewrites is “racial quotas in school discipline.”

Nearly four years ago, the Department of Education warned schools that they may violate Title VI by enforcing “neutral” behavioral standards that affect more minority students than white students, in the form of suspension, referral and expulsion rates.

According to the new report, the claimed “disparate impact” on minorities forces schools to discipline students “with an eye on racial numbers” and either abandon “valid procedures” or choose when, or when not to, discipline students based on their race.

Bader, the primary author of this section, wrote in his own blog post on the report that the Department of Education has argued that suspensions “do not advance an important educational goal.”

He said this is based on the widely scrutinized “school to prison pipeline theory,” but that the reduction of suspension rates to hit a racial quota has harmed the very students the department’s guidance claimed to protect.

MORE: Feds launch sketchy ‘disparate impact’ investigation of district

He cited a University of Arkansas study that found “suspensions were correlated with improved academic outcomes” such as improved math and reading scores.

The heavily black and Latino Los Angeles school district saw a 12-point plunge in students’ perceived feeling of safety after rapidly reducing suspensions of minority students for nonviolent offenses, Bader continued.

Schools that reduced suspension rates, based on federal provisions, have actually created an environment that was hostile to learning, he says, citing research by Rochester University Prof. Joshua Kinsler that found “cutting out-of-school suspensions in schools with many disruptive students widens the black-white academic achievement gap.”

The Federalist Society report recommends the Department of Education rescind any disparate-impact regulations in schools and issue “formal regulations clarifying that Title VI does not ban disparate impact.”

It should clarify that “a disparity only matters if it results from something in the school’s disciplinary process” and that policies “need only point to a legitimate interest served by the (disciplinary) policies.”

The other authors on the report were Linda Chavez, chair of both the project and the Center for Equal Opportunity; Roger Clegg, president and general counsel of the center; and Stuart Taylor, co-author of The Campus Rape Frenzy, who served as an “unpaid consultant.”

MORE: Feds stop ordering colleges to judge accused by low evidence standard

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Grace Curtis -- Converse College