Today the Education Department announced it is doing away with the use of disparate impact analysis. Disparate impact is supposed to show or prove the existence of discrimination but what it really identifies is different outcomes for different racial groups.
The Education Department on Thursday killed decades-old rules that have allowed statistical disparities to be used as proof of racial discrimination, the most recent move by the Trump administration to overhaul the government’s enforcement of civil rights law.
The move follows years of conservative complaints about “disparate impact analysis,” which incorporates use of data to show discrimination. Supporters say that discrimination is not always explicit and that data analysis is needed to uncover it. Conservatives say that proving discrimination should require proof that someone intended to treat people differently and argue that when people are being judged by data, they feel pressure to make decisions based on racial quotas.
The whole idea behind disparate impact analysis is basically a legal version of Ibram Kendi's take on racism, i.e. if there are differences in outcomes by race, racism is responsible. The problem is that all disparate impact is showing is that one group is doing better than another. The why is just being assumed in this type of analysis.
Supporters of disparate impact analysis say it is a critical tool because finding “smoking gun” evidence to prove someone intended to discriminate is difficult. And even if the intent wasn’t to discriminate, advocates say institutions should be held accountable for discriminatory effects.
Even in this little paragraph, the Post's authors are assuming the thing that needs to be proved. If there was no "intent" to discriminate then there was likely no discrimination. And you should not hold anyone accountable for "discriminatory effects" if you can't prove discrimination happened. In this case, "discriminatory effects" is just a stand in for different outcomes for different races.
But how do you know, absent other evidence, if those differences are based on discrimination or something else. For instance, if more Asian kids get As in math than black kids is that discrimination? The clear answer is no.
The academic "achievement gap" between Asian and white students at one end and black and Hispanic students at the other is widely acknowledged to exist by educators, including those on the far left. Different explanations and fixes for the gap have been proposed but there's no evidence that the answer is to assume teachers are all racist. The same gap exists in school districts that have a majority of black and Hispanic teachers. So, no, discrimination is not the problem and should never be assumed to be.
In schools, the standard has most notably been applied to school discipline policies. Across the country, data shows Black students have been more likely to receive punishments that remove them from the classroom, such as suspensions, expulsions and transfers to alternative schools.
Racial justice advocates have pushed for policies that would reduce those disparities, and those efforts in turn have drawn opposition from the Trump administration.
A chart of school suspensions by race just happens to be the inverse of a chart of academic achievement. Asian kids are suspended by far the least, white kids are next, with about triple the number of suspensions. Hispanic kids are suspended about a third more than white kids and black kids are suspended more than twice as often as Hispanic kids and about 10 times as often as Asian kids. That pattern probably isn't a coincidence.
Again, if there's evidence black students are being unfairly treated, that should stop. But you can't work backwards from the fact that more black students are disciplined to the conclusion that educators are racists or have unconscious bias.
Last year, President Trump issued an executive order seeking to end disparate impact analysis. Here's how City Journal's Heather Mac Donald described it at the time.
Disparate-impact theory holds that if a neutral, colorblind standard of achievement or behavior has a disproportionately negative effect on underrepresented minorities (overwhelmingly, on blacks), it violates civil rights laws. It has been used to invalidate literacy and numeracy standards for police officers and firemen, cognitive skills and basic knowledge tests for teachers, the use of SATs in college admissions, the use of grades for medical licensing exams, credit-based mortgage lending, the ability to discipline insubordinate students, and criminal background checks for employees and renters. It has been used to eliminate prosecution for a large range of crimes, including shoplifting, turnstile jumping, and resisting arrest; to end police tactics such as proactive stops (otherwise known as stop, question, and frisk); and to purge safety technologies like ShotSpotter and speeding cameras from police departments.
In none of those cases has it ever been demonstrated that the disfavored standard was implemented to exclude blacks or other minorities from a position, opportunity, or right.
Naturally, a collection of 60 civil rights groups oppose getting rid of this.
Every student, no matter their background, has the right to pursue their education free from discrimination. Today’s action has no basis in law or morality and is further evidence that this administration is determined to undermine our laws, abandon civil rights enforcement, and deny the existence of systemic discrimination. For decades, courts have acknowledged that discrimination is not always explicit or overt. The disparate impact tool is designed to remove unjustified barriers in education and ensure that all students have an equal opportunity to learn and succeed. Examples may include school discipline or school closure policies that appear neutral but unfairly and disproportionately harm or disadvantage Black and Native American students, as well as Latino and Asian American and Pacific Islander students, while ignoring alternatives that better serve all students.
This particular fight will never be over but for the moment common sense is winning.
Editor's Note: President Trump is fighting to ensure America's kids get the education they deserve.
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