When teachers are asked what wears them down most, they say it’s not worrying over their paycheck, but the behavior of students. Part of the reason student behavior has gotten so bad is disparate-impact liability.
Thankfully, last week, the Education Department released a new regulation eliminating disparate-impact liability under Title VI of the Civil Rights Act. Teachers, students, and parents can rest a bit easier knowing that their schools are now empowered to enforce school discipline with an eye toward school safety — and without fear of meddling by federal bureaucrats.
In civil rights law, the term “disparate treatment” describes treating someone differently based on protected characteristics, including race. This is commonly known as “discrimination,” and the Civil Rights Act was passed to quash this.
However, under the disparate-impact doctrine, the term “discrimination” is applied to cases in which individuals are treated equally and end up with different results.
These two definitions of “discrimination” are as different as night and day, and the conflation of the two by those pushing disparate-impact doctrine is not by accident.
In 2014, the Obama administration issued a Dear Colleague Letter clarifying that schools could be held liable under Title VI if their racially neutral disciplinary practice resulted in group disparities. If disparate impact, not disparate treatment, was found, these schools could have been stripped of their federal funding.
As detailed in a report by the America First Policy Institute, the results of this federal coercion resulted in a school discipline overhaul that was nothing short of disastrous. School districts rushed to adopt more lenient discipline policies, prioritizing decreasing disciplinary statistics at the cost of learning and order.
A study of Philadelphia’s ban on school suspensions saw a startling decrease in students’ math and reading scores after disparate-impact policies were implemented.
Similar results were seen in California, as four school districts that banned suspensions dropped the median student from the 50th to the 39th percentile in math. And another study in Pittsburgh investigating the implementation of a progressive alternative discipline known as “restorative justice” found statistically significant decreases in standardized tests for middle-school and black students.
In 2018, the Trump administration rescinded former President Barack Obama’s 2014 guidance. But the Biden administration relied on nearly half-century-old regulations to continue pressuring districts to adopt overly lenient policies.
During the Biden administration, even more school districts shifted away from traditional discipline to the “restorative” approach. A survey by EdWeek found that 44% of teachers said their schools used out-of-school suspensions less, compared to 14% who said their schools used them more. Perhaps partially as a result, 72% of educators said students were misbehaving more in 2024 than in 2019, with 48% saying students were misbehaving “a lot more.”
What’s worse: Some school districts responded to the Obama-era change in civil rights enforcement by adopting policies that encouraged racial discrimination. These reforms were part and parcel of the wave of “diversity, equity, and inclusion” reforms that swept through school districts during the Biden era.
In Fayetteville, Arkansas, teachers were told to take students’ racial identities into account when issuing discipline, or in other words, to discriminate by race. In Milwaukee, traditional discipline practices were derided as part of systemic “whiteness.” In Seattle, to reach “equity” in discipline, teachers were encouraged to approach their work with a “racialized educator lens.”
School districts such as these are ripe for federal civil rights investigations. Any direction or attempt to treat students differently by race, or to encourage educators to approach discipline differently based on their and/or their students’ race, encourages exactly the kind of disparate treatment Title VI and the broader Civil Rights Act were signed into law to stop.
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The Trump administration has not pursued investigations that encouraged this kind of discrimination. But by rescinding any regulatory mention of disparate impact, Secretary Linda McMahon has given school districts the confidence that the Civil Rights Act will be implemented with fidelity: to prohibit treating any student differently based on race. By rescinding all mention of disparate impact from Title VI, McMahon has done more than send discipline back to the states — she has sent it back to the classrooms.
Without the fear of federal civil rights investigators second-guessing appropriate discipline decisions, teachers can exercise greater moral authority in their classrooms. Students will be able to learn more in a more respectful environment. And parents will have less cause to fear that their child could be unsafe at school.
Erika Donalds serves as the chairwoman for education opportunity at the America First Policy Institute.