Barbara Hollingsworth, CNS News, January 14, 2014
The Obama administration’s new “guidance package” aimed at reducing out-of-school suspensions and eliminating racial disparities in school disciplinary proceedings will not reduce or eliminate widely criticized “zero tolerance” policies but exacerbate them instead, according to a former Education Department lawyer.
“The irony is the more overbroad and sweeping and draconian your disciplinary rules, the less disparate impact you have, and they’re telling the schools you must get rid of your disparate impacts,” Hans Bader, now a senior attorney at the Competitive Enterprise Institute (CEI), told CNSNews.com.
Bader pointed out that the much-maligned zero tolerance policies were adopted by school districts precisely to protect themselves against charges of racial discrimination. He characterized the new guidelines as a racial quota system that will inevitably result in harsher discipline for all students.
“These ideologues created Zero Tolerance Land because their disparate impact nonsense is what incentivized the schools to adopt them in the first place,” Bader told CNSNews.com.
“You really need a zero tolerance policy if you’re a school official because that reduces the risk of being accused of discrimination. You can say, ‘I treated every single student who had some type of not-permitted drug in school exactly the same way: I suspended or expelled all of them, whether it was, you know, marijuana, or heroin or Midol or something. And I treated the whites exactly the same as the blacks and because I disciplined so many people, I even got a fair number of white people.
“And it reduces their disparity, it gets rid of any individual differential treatment, it bullet-proofs their ability to avoid intentional discrimination charges, and it reduces their chance of being accused of disparate impact. That’s what zero tolerance does for you.
“And now Holder and the others are grandstanding and acting like they were the first people ever to realize that zero tolerance policies were bad, when it was in response to their kind of politically correct micro-management that made many school officials adopt these polices because these policies reduced relative racial disparities.”
Accusing administration officials of “talking out of both sides of their mouths,” Bader added that Holder and Duncan “are complaining about some of the very phenomena they and their ideological ilk caused through their obsession with the numbers and disparate impact and different percentages of different groups ending up in the principal’s office.”
“Essentially they’re scapegoating the principal for these different infraction rates that reflect societal realities. It’s not the school official’s fault that you have kids growing up in households where’s there’s not much discipline or order,” Bader told CNSNews.com.
“Another irony is that of course they’re never going to apply this to gender where there actually might be some evidence that teachers occasionally have a bias against boys,” Bader said. “They’re only applying this to race where it serves their politically correct agenda.”
The CEI attorney says that schools will eventually clamp down even harder on all students to protect themselves, including those who would not have been considered disciplinary problems in the past.
“As a practical matter, the school systems will engage in federal racial preferences in student discipline, and temporarily some of them will cut back on harsh discipline because, you know, the administration makes it sound like harsh discipline is what annoys them. But that’s only temporary,” Bader predicted.
“In the long run, they’re going to be more rigid in how they discipline people, because as I said, zero tolerance rules have less disparate impact than more nuanced rules and they’re less likely to give rise to discrimination charges because you treat everybody the same, and you have somewhat less relative bottom-line racial disparity because so many people are tossed into the disciplinary hopper.”