MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 303-292-2021 + FAX 303-292-1980 : www.mountainstatesiegal.org April 3, 2017 VIA FEDERAL EXPRESS The Honorable Jeff Sessions Attorney General of the United States U.S, Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 The Honorable Betsy DeVos Secretary of Education U.S. Department of Education 400 Maryland Avenue, SW Washington, D.C. 20202 Dear Mr, Attorney General and Madam Secretary: On January 8, 2014, senior officials at the U.S. Department of Justice and the U.S. Department of Education sent a “Dear Colleague” letter to State and local education agencies across the country that purports to advise them as to the provisions of “Federal law [regarding] the administration of student discipline based on certain personal characteristics” ("Dear Colleague Letter ‘on the Nondiscriminatory Administration of School Discipline”). The “Dear Colleague” letter warns recipients that the Departments of Justice and Education will “initiate investigations” over “racial disparities in student discipline”—in some cases, even when the disparity merely reflects the fact that minority students “are engaging” in specified misconduct “at a higher rate than students of other races.” (See pages 2 and 18 of the letter.) For the reasons set forth below, which include the unlawful nature of the directive, the horrific record of the use of race-based discipline policies by local school districts, and the public outcry of knowledgeable experts, I ask that the “Dear Colleague” letter be withdrawn as soon as possible. The “guidance” issued by the Departments violates the Administrative Procedure Act (APA). In fact, on August 16, 2016, a federal district court in Texas held that a similar “Dear Colleague” letter by the same Departments, “violated the notice and comment requirements of the APA.” Texas v. United States of America, Civil Action No. 7:16-cv-00054-0 (N.D. TX Aug. 8, 2016). A similar fate awaits this “Dear Colleague” letter when it is challenged. Fighting for india! liberty, he rght to xm end vse property, {init nd etic goverment, and the joc enterprise system sine 197,The Honorable Jeff Sessions and The Honorable Betsy DeVos April 3, 2017 Page Two Prior to the issuance of the “Dear Colleague” letter two large school districts experimented with the policy promulgated by the Departments. The results were nothing short of disastrous, specifically “violence and chaos,” writes one knowledgeable authority of what occurred in the wake of using racial equity rules to discipline students in St. Paul, Minnesota public schools. Because “kids... consider themselves untouchable [w]e are seeing more violence and more serious violence.” “[AJt many elementary schools, anarchy reigned.” So writes Katherine Kersten in “No Thug Left Behind: Obsessed with ‘racial equity,’ St. Paul schools abandoned discipline—and unleashed mayhem,” in City Journal, Winter 2017. In New York City, Mayor Bill de Blasio’s use of "restorative justice” to replace suspensions made schools “more dangerous than before. Assaults are up a shocking 40 percent in one year," writes a senior fellow at the London Center for Policy Research, Betsy McCaughey in the New York Post on January 19, 2016, Recently experts have condemned the “Dear Colleague” letter: Michael 5. Petrilli, president of the Thomas B. Fordham Institute, predicted “quick changes at the Department of Education’s Office for Civil Rights,” including “rescind[ing] the policy guidance promulgated by the Obama team that applied ‘disparate impact theory’ to the issue of school discipline.” Instead, he suggested, the Trump administration should say: If you treat kids differently because of their race, gender, etc., we will sue you for discrimination. But we won't assume discrimination just because of disparate rates of suspensions or expulsions. Fordham Institute’s EdExcellence Blog, November 9, 2016. More recently, Jason Riley, in an op-ed entitled, “An Obama Decree Continues to Make Public Schools Lawless,” Wail Street Journal, March 22, 2017, at A19, questions why, two months into the Trump administration, the “Dear Colleague” letter is still official policy. Referencing a newly released study (“School Discipline Reform and Disorder: Evidence from New York City Public schools, 2012-2016,” by Max Eden, Manhattan Institute, March 14, 2017), he notes that more than half of the nation’s 50 largest school districts have reduced suspensions “to the dismay of those on the front lines.” A Chicago teacher said her school became “lawless” after the new discipline policy was implemented. A teacher in Oklahoma City said “we were told that referrals would not require suspension unless there was blood.” A Buffalo teacher who was kicked in the head by a student said his charges are well aware of the new policy, “The kids... say, ‘We can’t get suspended—we don’t care what you say.’The Honorable Jeff Sessions and The Honorable Betsy DeVos April 3, 2017 Page Three Then, last week, the Wall Street Journal supplemented Mr. Riley’s op ed with a Letter to the Editor from Hans Bader, a former U.S. Department of Education attorney, titled, “Protecting Learners From Disruptive Bullies: The Obama administration's rules wrongly pressure schools to have racial quotas in suspensions, and the Education and Justice Departments should now rescind them.” Regarding disparate impact analysis, Mr. Bader wrote: [T]he federal appeals court in Richmond noted, when it comes to suspensions “disparity does not, by itself, constitute discrimination,” and the idea that a school system “should have a disciplinary quota is patently absurd.” The fact that 66% of suspended students were black did not show discrimination in that case, Belk v. Charlotte-Mecklenburg Board of Education (2001). Similarly, in 1997 the federal appeals court in Chicago struck down as an unconstitutional racial quota a requirement that schools not “refer a higher percentage of minority students than of white students for discipline.” March 29, 2017, A18. (Mr. Bader wrote a lengthy analysis of Mr. Eden’s study and why the “Dear Colleague” letter violates federal law, misinterprets Title VI of the Civil Rights Act of 1964, and pressures recipients to violate the Equal Protection Clause in, "Race-conscious curbs on suspensions lead to violence in New York and other cities,” Liberty Unyfelding, March 14, 2017.) That the “Dear Colleague” fetter was issued illegally, that similar policies have yielded disastrous results for students, teachers, and even the intended beneficiaries (allowing students to avoid any responsibility for their actions, said one teacher, means they are destined to go “from the schoo! house to the jail house”), and that it earned the condemnation of public policy experts should spell its doom. Nothing more needs to be said. Please withdraw the “Dear Colleague” letter as soon as possible. Thank you. Sincerely yours, William Perry Pendle| we President