Jan Resseger looks at a ecent rules change that changes the game when it comes to rooting out discrimination in schools. Reposted wit permission.
After Brown v. Board of Education established that Jim Crow laws establishing racially segregated public schools were illegal, the desegregation of public schools became a primary goal of the Civil Rights Movement, though widespread segregation persists today. The Civil Rights Movement also has sought to protect the right for equal treatment at school for students from different racial, ethnic and linguistic groups. Even in school districts that have achieved racial integration, cultural biases reflecting the dominant myths of our society continue to infect public schools across the United States.
In Original Sins, her powerful 2025 book about racial injustice, Chicago sociologist Eve Ewing traces, “the stories the United States tells itself about Black and Native people, and the way that those stories uphold a racial hierarchy that shapes all of our lives—and about the roles of schools in perpetuating those stories… The first is the premise of intellectual inferiority. This is the idea that Black people and Native people are inherently less intelligent than other (implicitly, White) people… The second is discipline and punishment. This is the idea that Black and Native people have unruly bodies, and that … it is necessary to impose control, rules and order upon those bodies… And the third is economic subjugation. This is the idea that Black and Native people… are assigned specific roles to play within a capitalist system, and the order of society is seen to be threatened if we deviate from those roles.” (Eve Ewing, Original Sins, p. 11; emphasis in the original.)
Ewing’s book explores the way these myths or cultural stores remain embedded—sometimes consciously and sometimes unconsciously—in our society’s largest institution, the public schools. For nearly three-quarters of a century, the Civil Rights Movement and the laws that have challenged racial bigotry—including the 1964 Civil Rights Act—have provided legal protection for public school students. Safeguarding students’ civil rights has been an ongoing priority of the U.S. Department of Education through its Office for Civil Rights.
Since Donald Trump was re-elected, however, his administration has persisted in challenging these protections. The Washington Post‘s Laura Meckler reminds us that in April 2025, the President, “declared the use of disparate (impact) analysis unconstitutional and issued an executive order that kicked off a review of civil rights regulations, enforcement action and settled cases.”
What is the meaning of “disparate impact” as a legal standard in civil rights enforcement? Education Week‘s Mark Walsh and Stephen Sawchuck define it with an example: “such as when statistics demonstrate a discriminatory effect of a school policy on discipline rates or other matters involving groups of students, even without intentional bias.” It is difficult to prove that a school’s personnel intended to punish Black or Hispanic or Native American students more severely than they discipline White students, but disparate impact analysis allows the Office for Civil Rights to use data for the purpose of identifying a discernible trend without having to prove intent. It’s an important distinction because many people are unaware that they have been affected by the kind of historical biases Eve Ewing describes, and even if school personnel were aware of their bias, few would confess that they intended to discriminate against one racial-ethnic group of children and adolescents and at the same time favor another.
President Trump’s April 2025 executive order is, of course, vulnerable to legal challenges, but on July 23, 2026, the Department of Education took a more decisive step by releasing formal guidance that overturns the action of previous administrations. Meckler explains:
“The Education Department… on (July 23), killed decades-old rules that have allowed statistical disparities to be used as proof of racial discrimination… 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 change was made without an opportunity for public comment, which is unusual for major regulatory action. The rules.. took effect immediately. The government’s action scrapped guidelines that were adopted n 1979, reinterpreting a key plank of the Civil Rights Act of 1964 which bars discrimination on the basis of race, color or national origin in programs receiving federal funding… The Trump administration has been working since last year to excise disparate impact analysis across government… Without disparate impact analysis, the administration will have to prove intentional discrimination.”
Walsh and Sawchuck explain that the Education Department’s new rule rejecting disparate impact follows steps by other departments to eliminate disparate impact in court challenges: “The Department of Justice and other Cabinet agencies have also begun issuing formal regulations removing disparate-impact analysis from their rules interpreting Title VI of the Civil Rights Act of 1964… The Education Department’s document states that the modifications will clarify that Title VI regulations ‘prohibit intentional discrimination and do not prohibit conduct or activities that have an unintentional disparate impact, and that accordingly, the Department will not pursue Title VI disparate-impact liability against its Federal funding recipients. ”
Walsh and Sawchuck provide some relatively recent history. In 2014, President Obama’s administration issued rules that reflected, “an expansive view of disparate impact liability involving student discipline.” However, “President Trump, during his first term, rescinded that guidance; the Biden administration did not restore it.”
In a 2016 book, Ending Zero Tolerance: The Crisis of Absolute School Discipline, constitutional law professor Derek W. Black describes the steps the Obama administration took to strengthen the use of disparate impact liability: “The (2014) guidance indicated that racial disparities may themselves be indicative of implicitly racial bias or just poorly conceived policies that require a better justification. The (Departments of Education and Justice) announced that they would analyze claims of discriminatory impact in three steps: (1) Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races?… (2) Is the discipline policy necessary to meet an important educational goal?.. If the policy is not necessary to meet an important educational goal, then the Departments would find that the school had engaged in discrimination… (3) Are there comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group, or is the school’s justification pretext for discrimination?” (Derek W. Black, Ending Zero Tolerance, p. 84)
On July 23, 2026, sixty civil rights and and educational organizations released a statement condemning the Trump administration’s rescission of disparate impact as a tool for civil rights protection of the students in the nation’s public schools. The signers include the NAACP Legal Defense Fund, Advancement Project, the Lawyers’ Committee for Civil Rights Under Law, the American Federation of Teachers, Americans United for Separation of Church and State, EdTrust, the Education Law Center, The Leadership Conference on Civil and Human Rights, the League of United Latin American Citizens (LULAC), and the Southern Poverty Law Center:
“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 disadvantaged Black and Native American students, as well as Latino and Asian American and Pacific Islander students, while ignoring alternatives that better serve all students. While undermining civil rights protections is never justified, the Department’s move to overhaul these anti-discrimination regulations without even providing the public with an opportunity to comment is indefensible. The rescission will hurt Black, Latino, Asian American, and Native American students, other students of color, and other marginalized students who face higher rates of discrimination.”
In my state, supporters of justice in public education will be pleased to see Honesty for Ohio Education among the state-level signers of that joint statement.
Rep. Bobby Scott (D-VA) is the ranking member of the U.S. House Committee on Education and the Workforce. K-12 Dive’s Anna Merod quotes Rep. Scott responding to the Department of Education’s recent action: “(Disparate impact) is critical to preventing discrimination and correcting historical wrongs… (R)emoving it is part of Trump’s larger agenda to drag America back to the Jim Crow era.”