By Todd A. Cox, LDF Policy Director
On Friday, November 17th, Attorney General Jeff Sessions released a memo prohibiting the Department of Justice (DOJ) from issuing guidance documents that “have the effect of adopting new regulatory requirements or amending the law.” The memo added that in the past, DOJ and other agencies have failed to make the distinction between guidance intended to clarify existing law, and binding regulations, which are required to go through a public comment process. Sessions also announced that a DOJ task force will review existing guidance documents and make recommendations for repeal.
This directive clearly signals DOJ’s intent to attack guidance documents designed to strengthen enforcement of our bedrock civil rights laws.
One example of what’s at risk under this new memo is the joint school discipline guidance issued by the Department of Education (ED) and DOJ, which is intended to help school districts discipline students without discriminating on the basis of race, color, and national origin — a violation of Title VI of the Civil Rights Act or 1964. Just last week Politico reported that ED held a closed-door meeting with conservative teachers and parents to discuss concerns about the guidance — yet another signal of the direction this Administration is heading.
The guidance was the first of its kind to recognize that students have been subjected to racially discriminatory discipline practices, a problem that has been well-documented for decades. According to recent data released by ED, during the 2013–2014 school year, Black K-12 students were 3.8 times as likely to receive an out-of-school suspension as white students. Research shows that there is no evidence that students of color misbehave more than their white peers, but they are often disproportionately disciplined for minor, subjective offenses such as disobedience and disruptive behavior.
This critical guidance does not create any new requirements for school or school districts. Rather, it provides valuable information to schools and districts to determine whether their disciplinary policies result in different treatment or have a disproportionate impact on certain groups of students. Indeed, it is designed to help schools follow the law they are obligated to obey to make sure students’ rights are protected.
This is one of potentially many important tools that serve the critical role of ensuring that institutions receiving federal funds follow existing laws designed to protect all of our rights.
In its short life, this Administration has made it clear that it has little regard for the civil and human rights of Americans. Given what we know about the Attorney General, in particular, we must deeply scrutinize any effort to tamper with the tools established to fulfill his agency’s responsibilities to protect fundamental rights.
This memo is no different. LDF will watch this process very closely and stands ready to act if needed.
