Ben Wolfgang, Washington Times, January 8, 2014
How discipline is doled out in the classroom now will be under much closer scrutiny by the federal government, but some analysts say the Obama administration’s efforts ultimately may backfire and could lead to de facto racial quotas in American schools.
The Education Department and the Justice Department on Wednesday issued new “guidance” to ensure minority students aren’t punished through suspension, expulsion or other means more than their white peers. The administration cited legal authority under Titles IV and VI in offering detailed rules for how school districts can administer discipline.
But within its guidance, most of which is not controversial and merely reinforces existing nondiscrimination laws, the administration also declares that schools’ disciplinary policies cannot have a “disparate impact” on one particular group.
In plain terms, it means district rules, guidelines and enforcement cannot result in the punishment of more black students than white students for the same offense, for example.
With that in mind, school leaders surely will keep a close eye on whether the same number of children from given racial groups are disciplined in equal number and equal measure for the same behavior.
“You have to make certain that your school discipline cases match those percentages. If you don’t, you’ll have the feds on your doorstep,” said Joshua Dunn, a political science professor at the University of Colorado and director of the university’s Center for Legal Studies. “If they actually do enforce these guidelines, there will be unintended consequences. This creates some rather destructive incentives. I don’t think there’s any way around that.”
Chief among those negative incentives, Mr. Dunn said, will be that teachers, principals and other school personnel may hesitate to punish a minority student for a particular offense out of fear that they will appear prejudiced or that their actions will result in disproportionate effects on one racial group.
Taken to the extreme, such a scenario could lead to even bigger problems, some specialists say.
“Eventually, you’ll have disorder in schools. . . . They either suspend white students for relatively trivial things or they don’t punish black students for behavior that is really disruptive or even violent,” said Hans Bader, a senior attorney at the Competitive Enterprise Institute. “You’re effectively commanding them to have racial quotas” with respect to which students are disciplined and how often.
In addition to its “disparate impact” provision, the administration’s guidelines also call for school staff to be trained on how to discipline students in a fair manner with no account given to race, gender, sexual orientation or other factors; law enforcement to be kept out of the process whenever possible; and teachers to be given instruction on conflict resolution and other methods to defuse situations before they escalate or turn violent.
While the guidance itself is non-binding and carries no additional legal weight, the federal government theoretically could cut funding to states or local school districts if they have violated Title VI, which specifically prohibits discrimination based on race, sex or national origin.
[Editor’s Note: Below is the “disparate impact” section of the DOJ letter.]
Schools also violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race. The resulting discriminatory effect is commonly referred to as “disparate impact.”
In determining whether a facially neutral policy has an unlawful disparate impact on the basis of race, the Departments will engage in the following three-part inquiry (see also Illustration 2, page 13).
(1) Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? For example, depending on the facts of a particular case, an adverse impact may include, but is not limited to, instances where students of a particular race, as compared to students of other races, are disproportionately: sanctioned at higher rates; disciplined for specific offenses; subjected to longer sanctions or more severe penalties; removed from the regular school setting to an alternative school setting; or excluded from one or more educational programs or activities. If there were no adverse impact, then, under this inquiry, the Departments would not find sufficient evidence to determine that the school had engaged in discrimination. If there were an adverse impact, then:
(2) Is the discipline policy necessary to meet an important educational goal? In conducting the second step of this inquiry, the Departments will consider both the importance of the goal that the school articulates and the tightness of the fit between the stated goal and the means employed to achieve it. If the policy is not necessary to meet an important educational goal, then the Departments would find that the school had engaged in discrimination. If the policy is necessary to meet an important educational goal, then the Departments would ask:
(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 proferred justification a pretext for discrimination? If the answer is yes to either question, then the Departments would find that the school had engaged in discrimination. If no, then the Departments would likely not find sufficient evidence to determine that the school
had engaged in discrimination.
Examples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon any student who commits a specified offense–such as being tardy to class, being in possession of a cellular phone, being found insubordinate, acting out, or not wearing the proper school uniform; corporal punishment policies that allow schools to paddle, spank, or otherwise physically punish students; and discipline policies that prevent youth returning from involvement in the justice system from reenrolling in school. Additionally, policies that impose out-of-school suspensions or expulsions for truancy also raise concerns because a school would likely have difficulty demonstrating that excluding a student from attending school in response to the student’s efforts to avoid school was necessary to meet an important educational goal.