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Letter to the Hon. Betsy DeVos, Secretary of Education, and Mr. Matthew Whitaker, Acting Attorney General - Menendez, Booker Demand Answers After Trump Admin Ends Civil Rights Guidance for School Discipline

Dear Secretary DeVos and Acting Attorney General Whitaker:

We write to express grave concern over the action of the U.S. Departments of Education and Justice ("the Departments") to rescind the Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline and other related documents ("guidance"), and to request information concerning the Administration's efforts to fully enforce Title VI of the Civil Rights Act of 1964 (Title VI) following this misguided rescission. This guidance was issued in 2014 to assist school districts, law enforcement agencies, and other recipients of federal financial assistance in understanding their obligations under Title VI and its implementing regulations and, in doing so, ensure students receive a safe, equitable, and high-quality education. Because rescission of the guidance does not change a school district's legal obligation under the law, your action has frustrated the ability of districts to fully understand their federal civil rights obligations.

As applied to schools, Title VI requires discipline policies to be developed and administered in a manner that does not discriminate against students on the basis of race, color, or national origin and that does not "have the effect of subjecting individuals to discrimination" or "the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin."[1] Prompted by mounting evidence and research consensus that students of color face harsher discipline penalties for similarly-situated offenses than their white peers, the guidance you rescinded addressed the application of both regulatory provisions to these practices while maintaining school safety and improving school climate. [2], [3]

We are concerned that rescission of the guidance reflects a lack of commitment on the part of the Departments to fully enforce federal civil rights law that is intended to ensure that students are not discriminated against because of their race, color, or national origin. Our concern was heightened when we saw that the Question and Answer document issued by the Department of Education concurrently with rescission of the guidance addressed the obligation of schools not to intentionally discriminate, but made no mention of their obligations to not have the effect of unlawful discrimination on the basis of race, color, or national origin. Moreover, news reports suggest the Department's intent to rescind key regulatory requirements that prohibit federally funded programs from using methods of administration that have the effect of discriminating or denying equal benefit on the basis of race, color, or national origin.[4]

Regardless of the Departments' recent rescission or future plans to reregulate, the current regulations obligate the Departments to enforce against both intentionally discriminatory policies and practices and those that have a discriminatory effect. As such, we expect the Departments to fully enforce Title VI of the Civil Rights Act of 1964 and the implementing regulations as directed by Congress. To assure Congress of the Administration's intent to fulfill its enforcement obligation under federal civil rights law in this area, we request written responses to the questions below no later than February 13, 2019:

How are your Departments enforcing federal civil rights laws, including 34 C.F.R. § 100.3(b)(2) and the effects test contained therein, in the administration of school discipline?
How are your Departments informing schools of their obligations under federal civil rights law, including 34 C.F.R. § 100.3(b)(2) and the effects test contained therein, regarding the administration of school discipline?

Thank you for your prompt attention to this matter.


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