Changing the Paradigm

All of these conditions are associated with significant disparities in educational outcomes for low-income and minority students. A campaign by the administration and advocates to challenge educational policies and practices that result in a disparate impact would emphasize the need for positive student outcomes--for example, staying in school, academic achievement, college-readiness. And public officials might be required to finally begin to address the patterns of policy--systemic discrimination that adversely impacts students of color.

Viewed this way, substantial outcome disparities between student groups would be treated as legal violation wrongs that would trigger positive remedies. So, too, could policies and practices like inequitable systems of resource allocation (including qualified, effective teachers) and disciplinary rules that have a disparate impact on children of color, students with disabilities, and English language learners.

While the Fourteenth Amendment and the Title VI statute require proof of intent to discriminate, the Title VI regulation does not and includes an effects standard. The Supreme Court determined in Alexander v. Sandoval, 532 U.S. 275 (2001), however, that there is no private right of action to enforce this provision. This decision severely limited the ability of private plaintiffs to pursue legal remedies for policies and practices with an adverse, disparate impact. Fortunately, the disparate impact provision can still be invoked by federal agencies on behalf of people who experience unintentional but demonstrable discrimination. The Department has the ability to resolve complaints and to conduct compliance reviews against states, districts, and schools for practices that create a disparate impact on students. By accelerating investigation of egregious cases of disparate impact, the Obama administration can take significant steps toward enforcing the law, protecting students' right to education, and guaranteeing that all students are actually afforded a quality education.

This approach, with its emphasis on addressing outcomes, is consistent with international human rights norms and standards. The international human rights framework, which the United States helped to develop when the United Nations was founded, focuses on realizing affirmative rights as well as protection from denial of such rights. Within this framework, the government's role is clear: to respect and ensure the rights of individuals. At the very basic level, respect involves not violating one's rights, while to ensure is an affirmative obligation to protect rights, investigate and punish rights violations, and promote and fulfill rights. This holistic view considers rights to be indivisible, interrelated, and interdependent and acknowledges that all must be considered in order to effectively address social ills. It places the onus on governments to create policies based on human rights principles that effectively combat discrimination in all of its forms and to take affirmative steps to implement and monitor human rights obligations domestically.