Washington, D.C. – On Monday, August 10th, Congresswoman Jennifer McClellan (VA-04) led 19 House Members in calling on the U.S. Department of Education to reverse its elimination of a critical tool to protect students from discrimination under Title VI of the Civil Rights Act. In a letter to Assistant Secretary for Civil Rights Kimberly Richey, the lawmakers pressed the Department for answers about how this rollback will affect the federal government’s ability to identify and address discriminatory practices in schools.
The Department’s decision comes as students across the country continue to face disparities in school discipline and access to educational opportunities. By eliminating disparate impact protections, the Department has narrowed the tools available to federal civil rights officials to address discriminatory outcomes, particularly in cases where discriminatory intent may be difficult to establish. The lawmakers also demanded an explanation for the Department’s decision to finalize the rollback without first seeking public input through the traditional notice-and-comment process.
“For decades, disparate impact analysis has enabled OCR to investigate facially neutral policies that produce unjustified discriminatory outcomes, even when there is no direct evidence of discriminatory intent,” wrote the lawmakers. “Although Title VI prohibits intentional discrimination, the Department’s implementing regulations have long recognized that practices with an unjustified discriminatory effect may unlawfully deny students equal educational opportunity. By rescinding these regulations, the Department has fundamentally altered the framework through which OCR investigates and remedies systemic discrimination.”
The lawmakers continued, “The Department has stated that OCR investigators will no longer rely on statistical disparities to support findings of discrimination and instead will be required to establish intentional discrimination through other evidence. This represents a significant departure from longstanding enforcement practice and raises serious questions about OCR’s ability to address systemic inequities that often manifest through patterns and practices rather than explicit discriminatory intent. Because discriminatory intent is rarely overt, requiring complainants to meet this heightened evidentiary burden may substantially reduce the Department’s ability to identify and remedy violations of Title VI.”
The letter asks for a response to the following questions and requests for further information:
- Please provide the legal analysis and supporting memorandum relied upon by the Department in rescinding the Title VI disparate impact regulation.
- What legal authority did the Department rely upon to conclude that notice-and-comment rulemaking was unnecessary?
- Did the Department conduct any analysis regarding the anticipated impact of this rescission on students protected under Title VI? If so, please provide those analyses.
- How will OCR investigate complaints alleging racial discrimination now that disparate impact analysis has been removed from the Department’s regulations?
- What evidentiary standards will OCR apply when determining whether intentional discrimination has occurred?
- Have OCR investigators received revised guidance or training concerning the investigation of Title VI complaints? If so, please provide all guidance, memoranda, and training materials.
- Does the Department anticipate issuing additional guidance to schools, colleges, or OCR staff regarding enforcement of Title VI following this rescission? If so, when will that guidance be released?
“We are troubled by the Department’s decision to issue this final rule without first soliciting public input through notice-and-comment rulemaking,” the lawmakers concluded. “Congress has a responsibility to ensure that federal civil rights laws are faithfully implemented and that every student has equal access to educational opportunity. We remain deeply concerned that this action may significantly weaken the federal government’s ability to identify and remedy systemic discrimination in schools.”
In addition to McClellan, the letter was signed by Representatives Rashida Tlaib, Julia Brownley, Adriano Espaillat, James Walkinshaw, Eleanor Holmes Norton, John Garamendi, Greg Landsman, Sylvia Garcia, Lateefah Simon, Bennie Thompson, Shontel Brown, Hank Johnson, Shri Thanedar, Sydney Kamlager-Dove, Chuy Garcia, Seth Moulton, Jonathan Jackson, Bobby Scott, and Don Beyer.
Read the full letter text here.