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

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Last week I wrote about disparate impact theory in the context of  an ACLU complaint against South Orange-Maplewood School District. Here, ACLU charges that the Essex County district is discriminating against Columbia High School minority students by disproportionately suspending them and  relegating them to lower level classes than their white peers.  In the complaint to the federal Office on Civil Rights, the ACLU concedes that South Orange-Maplewood has no intent to discriminate and, in  fact, the district has worked hard to provide equitable opportunities regardless of race. However, the disproportionate results outweigh intention and  justify federal intervention.

That’s disparate impact theory: it’s not about intent; it’s about outcome, and has been applied with mixed success to fair housing, lending practices, and  labor laws.

In a blow to this strategy, a federal judge just threw out the Obama Administration’s complaint based on the 1968 Fair Housing Act.  From today’s Wall St. Journal:

So it’s big news that Judge Richard Leon has ruled that the 1968 act “unambiguously prohibits only intentional discrimination” and thus the 2013 Housing and Urban Development rule violates the law. Judge Leon noted that when Congress amended unemployment law in 1991, it expressly did not amend housing law to include disparate impact.

“Only intentional discrimination.” That’s the key phrase here. If this interpretation is applied to ACLU’s complaint in South Orange-Maplewood, then the district’[s intent to be non-discriminatory is not invalidated by the outcome that more minority kids are suspended and placed in lower-level classes.

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  • Gordon Wright, November 4, 2014 @ 8:08 pm Reply

    Wow—not enough people are talking about the ramifications of such a decision on our schools. Thanks for sharing this.

  • StateAidGuy, November 5, 2014 @ 4:13 pm Reply


    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)

  • Gordon Wright, November 5, 2014 @ 5:49 pm Reply

    Well, to be honest, I'd like to see more discussion of this precisely because I don't feel well-enough informed to offer a considered opinion.

    But I'm horrified by some of the starker numbers of disproportionate suspensions and expulsions, particularly in larger urban areas. It doesn't seem good enough to me to simply throw up our hands and say, “oh well, we tried”…

  • Daniel Losen, November 7, 2014 @ 10:18 pm Reply

    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.”


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

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