Prescription for a Banana Republic

dept of ed

This past Friday, Boston College’s excellent Shep Melnick (interviewed on this site not long ago) gratuitously ruined my weekend by alerting me to the latest “Dear Colleague Letter” (“DCL”) from the Education Department’s Office for Civil Rights (“OCR”). The DCL “shares” OCR’s views on “resource compatibility” at the nation’s schools, district by district. Horrendous in its own right, the letter also prompts broader thoughts on “government by guidance”: it’s a prescription for a banana republic.

 

The letter outlines OCR’s interpretation of its own “disparate impact” regulations under Title VI of the Civil Rights Act, prohibiting discrimination on the basis of race or national origin in federally funded institutions. It runs over 37 pages, including 63 elaborate endnotes. The DCL systematically conflates “disparate impact” with intentional discrimination; OCR’s investigative methods and tests for both are indistinguishable. And OCR leaves no stone unturned. Its perceived mandate to ensure “resource compatibility” extends to courses, academic programs, and extracurricular activities; teacher effectiveness, the stability of the teacher workforce, teacher qualifications and experience, school leadership, and support staff; instructional materials; and school facilities, including their design and the “overall physical condition of the school, including features such as paint, maintenance of carpet and lockers, and the absence of vandalism.”

All this goes a million miles beyond the requirements of the Constitution; of Title VI; and even of OCR’s own (legally dubious) disparate impact regulations. Yet it can’t be challenged in any court, anywhere: unlike a rule or regulation, it’s not a “final” agency action that’s subject to judicial review. Obviously, though, the DCL is meant to be more than merely helpful: in no uncertain terms, it reminds recipients that OCR can and will investigate suspected evil-doers, including those who have been merely unaware of resource compatibility with respect to paint.

Why do we permit agencies to proceed in this underhanded, unreviewable fashion? The general idea is that in choosing to proceed by “guidance” rather than formal, reviewable regulation, the agency is giving something up: the legally binding effect of its rulings. It’s not really coercing anybody, and so why bother the courts? That answer, however, wildly underestimates government’s ingenuity in giving real-world effect to supposedly informal documents.

The FDA, for example, routinely issues informal “draft” guidance documents that could not conceivably pass judicial muster. (Among other things, they prohibit truthful speech about medical products.) Still, those guidances have served as ammunition to countless private plaintiffs who sue pharmaceutical companies for peddling their products in violation of the guidelines, thus purportedly overbilling Medicaid and Medicare. (These “qui tam” plaintiffs, acting on behalf of the government, get to keep a portion of the recoveries, which now run into billions of dollars.)

That sort of thing can’t happen here. The Supreme Court has held that OCR’s disparate impact regulations are enforceable only by the federal government, not by private parties (here, not qui tam plaintiffs but “statutory beneficiaries.”) At the same time, though, it’s ludicrous to think that OCR itself can implement its guidance. Barely able to respond to instances of actual discrimination, it can’t possibly do carpet inspections across the country and correlate the thread count with race and national origin. So who is going to enforce this?

The “Dear Colleagues”: that’s who. The compliance officers and equity counselors who populate every school district in the country, on account of federal mandates. OCR gives them ammunition:

OCR strongly recommends that school districts proactively assess their policies and practices to ensure that students are receiving educational resources without regard to their race, color, or national origin, including the resources discussed in this letter, as Title VI requires.

Artfully done: while Title VI requires nothing beyond abstaining from intentional race discrimination, the italicized phrase could easily be read to require a proactive self-assessment—and what superintendent would know the difference? And:

Ideally, the district would designate one or more employees to coordinate the district’s compliance with Title VI, including self-assessments of resource comparability. Designating one person responsible for overseeing compliance may aid in identifying and addressing any patterns or systemic problems that arise during the assessment and review of any complaints of discrimination.

Whereupon compliance officers across the country can be heard clearing their throats: I can help. Also, they call their educational consultant-friends and perhaps the local carpet store. And if the superintendent doesn’t play ball, they call OCR. It’s the administrative state and “cooperative federalism” all the way down, and up.

The resourceful among us can exit this lawless, idiotic regime by sending our kids to private schools or moving to school districts that are effectively immune from OCR. (Imagine an OCR “resource compatibility” investigation in Fairfax County or at Langley High: heads would roll. They’re not that stupid.) That takes a lot of money, though. Replicate the m.o. across the full range of government services and regulation: it takes a ton of money to escape. Once you start adopting Juan Peron’s legal model, social patterns will follow. We’re well on our way.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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Comments

  1. john trainor says

    Well it was a nice constitutional, federalist republic while it lasted. At least we’ll have the memories. What is particularly galling is the status of the federal bureaucracy , pampered beyond reason, utterly slothful and overpaid, and of course ultimately harmful, or is it now destructive.

  2. gabe says

    Compliance officers defined as those who revel in their participation in the Stockholm syndrome – at least they are well paid for it!!!

  3. says

    I read this the day it came out and thought it was a back door means of turning education into a basic right as if SCOTUS never decided Rodriguez. The language in the letter about providing services or technology at some schools shows it is valuable and thus Equity comes into play is truly far reaching.

    If you are not familiar with Goodwin Liu’s 2006 Yale Law Journal article, he envisions national standards precisely like the Common Core as a means to change the meaning of the 14th Amendment to an economic justice interpretation without having to actually change the language by amending the Constitution.http://www.invisibleserfscollar.com/morphing-the-common-core-into-a-new-rewritten-us-constitution-by-mandating-false-beliefs/

    Education and the law now are viewed as tools to bind individuals to a vision of government that is the antithesis of what the Founders intended.

  4. Bob says

    This has been the tactic of the EEOC for years. The laws haven’t changed, but the infinitely funded federal bureaucracy has decided the effect of the law will change. It’s legislation at the end of a gun which has been foisted on employers for years.

  5. RickC says

    Since there should never have been a Department of Education in the first place, the proper response is to simply abolish the department. Any government bureaucracy will work to accumulate power, prestige, and money. All this is to be expected. The only response is a nuclear response.

    • says

      Rick-perfectly justified reaction, but please appreciate that this instinct has already been boiled into the transformative plans for K-12 education. Many of the aggressive school districts, generally suburbs like Montgomery, Fulton, Fairfax, Gwinnett, Wake etc have formed into a Consortium to push for local control that in turn hypes the UNESCO global vision. http://www.invisibleserfscollar.com/deliberate-cultural-evolution-via-developmental-psychology-to-force-social-change-or-gypsy-supers-lobby-dc/ explains with a link to document.

      GYpsy Super is a term I developed to reflect these job hopping administrators who make big bucks hyping an ever more aggressive vision of K-12 everywhere they go. On the law as a tool angle, this Consortium was created in meetings held in the law offices/education advisory firm practice of Clinton’s Ed Secretary Richard Riley. Same practice has also been hired by the CCSSO, a sponsor of the Common Core, to push Competency-Based Education and Next Generation Learning. Education law is used as a policy-making tool, but the typical school board member I encounter is unaware of the extent to which they are adopting transformational changes.

      There are rather extensive writings in the socialist countries on using the law to usurp any presumption of the sovereignty of the individual. That appears to be where we are going as well.

      Harvard’s professor Mica Pollock who has worked with the Southern Law Poverty Center on its K-12 Promoting Tolerance and Anti-Bias Curriculum admits that the Civil Rights Laws are taught to teachers as she wishes they read. No teacher is likely to recognize that they have been misled so they in turn pass on the false beliefs to the students. The Students are now being led to believe that the reservation of power to ‘We the People” refers to a collective who can bind everyone by majority vote or just the consensus of stakeholders.

  6. says

    If you want to know what it looks like when this colleague letter hits the fan, take a really close look at Ohio State firing their band director in a big public scandal. Their case against the director has publicly collapsed, but it doesn’t matter, they won’t reopen the case. And the reason is that the director was the sacrificial lamb used to close a 4-year-long DoE investigation.

    The most shocking part of all of this is that the letter from the DoE closing the investigation explicitly says that they closed the investigation because of the universities’ (needlessly public) handling of band case, even though they had a lot more questionable cases at OSU still remaining to investigate. It seems the DoE wanted a big trophy in the national news, and OSU gave it to them to get them go away.

    The director is currently suing OSU for his job back, a million in actual damages, plus punitive damages.

    If you follow such things, the band attained national acclaim over the last couple of years with their “animated” band shows. The director brought in 30 million dollars from Apple with an iPad ad (the band used iPads to learn the complex shows). And yet they chose him as their sacrifice. Relatively new at his job, he was technically staff not faculty, and had an at-will contract. This made him an ideal choice to pick to create a case against. The universities are running so scared from the DoE right now, they’re willing to destroy some of their biggest public assets to get the DoE to go away.

    There was also another fiasco at Clemson where they had to pull web-based title IX training (MANDATORY for all students) which asked insanely private questions about the individual’s sex life. It should’ve been reviewed and it should have been obvious that the training was inappropriate. But again, they are so afraid of the DoE, they’re rushing like mad to get something, ANYTHING, in place.

    There’s also numerous stories about colleges that are trying to write “sexual consent” contracts into their codes of student conduct. Sometimes called “yes means yes” rules, they require students to obtain explicit consent throughout the process of sexual activity, starting with hand-holding, I suppose. It hasn’t occurred to anyone so far that compelled speech intended to prevent problems is a just another form of prior restraint.

  7. libertarian jerry says

    As free public education is the 10th Plank to the Communist Manifesto. And as the Cultural Marxists have,by and large,usurped their bureaucratic authority and have taken over academia and the public school system. And,at the same time,studying the Constitution,I can’t find education mentioned anywhere. Isn’t it time for concerned parents to take their children out of the public school system and the Marxist run universities and either private school them or better yet home school them. Isn’t it better to mentor your own children instead of exposing them,not to education,but to indoctrination. Is it any wonder that many public high school students graduate at a 6th grade level,or lower,and can barely read and write let alone do math skills. Yet again,how about college “graduates” that majored in nothing courses,getting a nothing diploma and,after graduation,can’t find a meaningful occupation and land up hopelessly ensnared in the unsustainable college loan debt trap. The Left,through Cultural Marxism,have accomplished most of the goals that they set out on 100 years ago. They have set up indoctrination camps called public schools and after a “long march through the institutions” have taken control of the culture: education,academia,the arts,plus the mainstream media,hollywood and TV. By accomplishing most of their goals they have aided and abetted the destruction of the family,self responsibility and self reliance and replaced those institutions with the state and the dependency class which they,the Left,are charge of. Its all about power. The power to run other people’s lives under the shadow of a world view based on statism,socialism and a know it all worship of collectivism. God help our children and the dead republic they will inherit.

  8. Lawrence Cohen says

    How did Title IX ever evolve from a civil rights issue of providing equal opportunities in education to what is has become today? There are some federal departments where the bad things they do outweigh the good. This may be one of them.

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