Gail L. Heriot and Alison Somin:

On March 8, 2010, one year into the Obama Administration, Secretary of Education Arne Duncan gave a passionate speech in which he asserted (correctly) that African-American students are the subjects of school discipline at higher rates than white students. Although he did not mention it, it is also true that white students are the subjects of school discipline at higher rates than Asian American students and that male students are disciplined at higher rates than female students.

In response to the racial disparity he identified, Duncan promised that the Department of Education would be stepping up its enforcement of Title VI of the Civil Rights Act of 1964. In the years that followed, the Department of Education made good on that promise by opening numerous investigations based on statistical disparities. On January 18, 2014, the Department of Education and the Department of Justice jointly issued a “Dear Colleague Letter” on school discipline in which they asserted that the law prohibits not only actual discrimination in discipline on the basis of race, but also what they called “unjustified” disparate impact.